Applying for trademark protection

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Registering a trademark makes it illegal for third parties to make unauthorized use of the mark. Its proprietor is thus able to protect themselves against copycats and freeloaders and to enforce their rights.

While there is no obligation under trademark law to file an application, it is definitely a good idea as it is the only way of obtaining trademark protection, which prevents third parties from using the registered trademark for their own purposes and makes it easier for the trademark owner to enforce their rights, notes commercial law firm MTR Legal Rechtsanwälte, whose practice includes IP and trademark law.

It is certainly possible to make use of a mark without having it officially registered, though it won’t be protected and competitors will be able to use it for their goods and services. It is important to note that even after years of use, a mark will not accrue trademark protection.

For a mark to be eligible for registration, there must be no grounds for refusal, i.e., the mark must, among other things, be sufficiently distinct vis-à-vis other companies’ products and services such that consumers do not confuse them. The mark must not have a purely descriptive character, and third parties, businesses, and consumers should be able to clearly identify it.

Additionally, it is necessary to determine the scope of trademark protection. If it is sufficient for the mark to be covered in Germany, it need only be registered with the German Patent and Trademark Office (DPMA) to be protected nationally.

However, if the plan is for trademark protections to apply throughout the EU, it is necessary to register with the European Union Intellectual Property Office (EUIPO). EU trademarks enjoy protection in every member state of the European Union. Alternatively, it is possible to seek to register a mark internationally, in which case the protections will not extend to the entire EU but rather only to those countries where it is sought and needed. To this end, one can either submit a base trademark application in the respective country, or a pre-existing base trademark, e.g., in Germany, can be extended to other countries.

Before filing an application, It is important to thoroughly research whether this would infringe any existing trademarks rights.

The team of legal experts at MTR Legal advises on IP and trademark law.

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