Trade Marks

Conception and Function
As (individual) trademarks are considered the names, drawings, prints, stamps, letters, figures, forms of goods or packaging and all other signs to discern the goods of a business. It is essential that a sign has distinctiveness to be able to fulfill the function of a brand.

Distinctiveness
Signs that lack every distinctiveness are designated as describing signs and for that reason unacceptable as a brand. An illustration: the designation “baker’s” cannot serve as brand for the services and products of a baker's shop.

Trademark registration
Contrary to other rights, such as tradename right and copyright, the trademark is solely created by registration. It is possible to file various kinds of trademarks, e.g. word trademark, form trademark and combined word/figurative trademarks.

Duration
The validity period amounts in principle to 10 years starting at the moment of registration and could be unlimited prolonged. Contrary to other Intellectual Property Rights, the trademark can be eternal. A trademark could, however, also be cancelled if for a period of 5 years one has not made any ‘normal use’ of it.

Exclusive right
A trademark grants the entitled person an exclusive right to the use of his trademark. The trademark owner who according to the registers owns the registered trademark has the exclusive right to the use of the trademark and may oppose to the use of his trademark or similar marks.

Exercising right
If the trademark owner establishes infringement on his rights or thinks that this might be the case, he could demand (for instance in summary proceedings or by means of an ex parte decision) a prohibition with attached a penal sum. In addition, under certain circumstances, the trademark owner could lay claim to compensation and/or surrender of profits.

Marketing
The trademark owner could opt to use the trademark himself by offering himself products and services under the trademark. However, he could also opt to leave the use of the trademark to third parties or allow co-use in a certain area. In that case one will almost certainly enter into a license agreement in which the rights and obligations with respect to the use of the trademark are laid down and in which also agreements are made about the financial reimbursements involved. Think for instance of franchise agreements, which for a major part are based on the use of the trademark owner’s trademarks.

Other Intellectual Properties