What does “intellectual property” and “industrial property rights” mean?
“Intellectual property” (short: “IP”) stands – in legal terms – for various rights created through mental effort. These include copyright law and related property rights as well as “industrial property rights” like patents, utility models, trademarks and designs. The unfair competition law and especially the supplementary protection of related rights under competition law are also part of the “intellectual property law” due to various similarities to the above mentioned rights.
How can I protect my idea?
Strictly speaking, a mere idea or business concept itself cannot be protected according to German law. Nevertheless, the industrial property rights (e.g. patents, trademarks, designs) offer various possibilities for protection against counterfeiting at least parts of an “idea” for several years – and with brands for an unlimited period of time. The utmost protection can often be reached by the combination of various rights, e.g. between trademarks and designs. Our goal is to develop a protection and application strategy adjusted to your requirements and partner with you to execute that strategy.
What is the price of an application for an IP right (e.g. patent application or trademark application) in Germany/Europe?
The costs of applications for IP rights (e.g. patents, utility models, trademarks and designs) depend on various criteria; the scope of the intended right (in regard to trademarks these are the amount of Nice classes for goods and services) and the intended local scope of protection (e.g. a national application at the German Patent and Trademark Office (GPTO / DPMA), an International application at the WIPO or a national application in one or more countries).
Apart from the official fees there are (in case of the involvement of a lawyer) the costs of the German / European patent attorney or the IP lawyer for the drafting and execution of the application, as well as further supervision of deadlines. In the case of foreign applications, there are typically costs associated with foreign colleagues entrusted by the client and potential costs for translation. Additional information about the costs of the various applications for IP rights can be found on our homepage in the section „Areas of Activity“. We would be happy to offer you a proposal tailored to your needs.
What do the symbols ®, ™, (SM) and © mean?
The aforementioned symbols originate from US law. However they are also relatively widespread in Germany and Europe. These symbols are – unlike the US – in legal terms mostly irrelevant in Germany, apart from a possible relevance for the law of unfair competition in case they are used improperly.
The ® (“R in a circle”) stands for a registered trademark, whereas the ™ is standing for a not (yet) registered but used trademark for goods and the (SM) for a not (yet) registered but used trademark for services (“service mark”). The use of the “R-in-circle” for a registered trademark may have benefits in a case of a trademark violation in the United States.
The © (“C in a circle”) is used as “copyright notice” to identify an existing copyright and is often combined with the year of the work and information of the creator. In some jurisdictions the © is even required for the existence of copyright protection.
If you have further questions regarding the use of these symbols, please feel free to contact us.
How can I use intellectual property rights for advertising?
Extensive case-law has been developed over the years concerning advertising with IP rights (e.g. how and especially from which date which intellectual property rights can be used in advertising). The requirements of an appropriate advertising campaign are generally higher in a case of unexamined register rights (for example designs and utility models) than for patents. The premature use of the term “protected by law” could be interpreted as a breach of unfair competition law under certain circumstances. We are pleased to be of service for questions such as these.
Do I have to use a registered right?
At least in most jurisdictions the owner of a registered patent, utility model or design has no obligation to use this registered right. However the situation is different regarding trademark law. There is a use requirement for a registered trademark. In most jurisdictions, proof of genuine use of a trademark can be demanded after five years after the day of the registration (e.g. for German trademarks and community trademarks). The trademark may otherwise be cancelled. For questions concerning the use of a trademark or the respective documentation, please contact our office.
What is a warning letter (German: “Abmahnung”)?
A warning letter (German: “Abmahnung”) is a demand to the recipient to refrain from a certain (allegedly) infringing behavior (e.g. a violation of trademark rights). In general, the recipient is demanded to sign a declaration to cease and desist (German: “Unterlassungserklärung”) within a certain time period, including the demand for omission of the behavior (to rule out the danger of repetition) and further demands (e.g. damages, reimbursement of the costs and information). Furthermore, there is the threat of legal proceedings if there is no declaration to cease and desist.
How should I react to a warning letter? Is it recommended to ignore the warning letter without reacting to it?
According to our experience it is not advisable to ignore a warning letter. Most cases will not be settled by a mere lack of response. In cases such as these the person sending the warning letter usually initiates legal action (e.g. an interim injunction or lawsuit) which is associated with a cost risk.
Should I sign the attached declaration to cease and desist?
Experience has shown that many of the submitted drafts for cease and desist letters exceed the actual existing claims and may limit the freedom to act disproportionately. In addition, many other obligations (e.g. cost coverage) are often included in the warning letter which should be examined in more detail. A declaration to cease and desist should only be signed (if ever and usually in a modified form as a so-called modified cease and desist letter) after a detailed analysis of the warning and the cease and desist letter.
Should I reply to the warning letter by myself?
Of course, it is possible to respond to the warning letter yourself. However there is the danger that you may overlook pertinent details or make statements that may worsen your situation in a possible legal proceeding. Even if an injunctive relief exists, the claims raised are often excessively high. For this reason, it is advisable to seek help of expert lawyers and obtain professional advice at an early stage.
What if I did some research regarding warning letters on the internet?
While there are many websites that deal with relevant issues, it is hardly possible for a non-professional to find out the correct and appropriate recommendations for each individual case. Furthermore, there is also the risk that the retrieved advice or court decisions are misinterpreted and may lead to erroneous conclusions. In addition there are sometimes clearly false tips in forums and newsgroups that may have negative consequences on the proceedings. Although independent research on the internet can give you an initial overview of the topic, this cannot replace legal advice for the individual case in our opinion.