GERMANY Law and Practice Contributed by: Thomas Nägele, Steffen Henn, Anke Hofmann and Serpil Dilbaz, SZA Schilling, Zutt & Anschütz
SZA Schilling, Zutt & Anschütz Otto-Beck-Strasse 11 D-68165 Mannheim Germany
Tel: +49 621 4257 247 Fax: +49 621 4257 286 Email: thomas.naegele@sza.de Web: www.sza.de
1. Trade Mark and Copyright Law 1.1 Governing Law As Germany has a civil law system, rights regarding marks and copyrights are based on statutory law. The central statutory source of law regarding trade marks is the German Trade Mark Act ( Markengesetz or TMA); regarding copyrights it is the German Copy - right Act ( Urheberrechtsgesetz or CA) and the Act on the Copyright Liability of Online Content Sharing Ser - vice Providers ( Urheberrechts-Diensteanbieter-Gesetz UrhDaG). Beyond that, there is a variety of case law specifying and implementing the statutory law. 1.2 Conventions and Treaties/Rights of Foreign IP Holders Germany has signed the TRIPS Agreement, the Paris Convention for the Protection of Industrial Property and the Nice Agreement concerning the international classification of goods and services. Prior use of a trade mark abroad does not result in trade mark protection in Germany. As a general rule, trade mark protection in Germany requires registration of the sign in Germany and/or in the EU, or it arises as a result of extensive use of a sign in Germany and/ or in the EU. Since Germany is part of the EU, the EU Trade Mark Regulation (EUTMR) has immediate effect within Ger - many. Therefore, EU trade marks automatically pro - tect the sign in the whole EU, including Germany.
Regarding copyright protection, there is no equivalent to the EUTMR. The law of the respective EU member state grants copyright protection and determines its scope. However, the EU has issued several directives (eg, InfoSoc or CDSM Directive) harmonising wide parts of the copyright protection in the EU. International agreements such as the Berne Conven - tion, the Paris Convention, TRIPS and the Madrid Pro - tocol guarantee a minimum standard of rights, which signatories to these agreements must guarantee. 2. Trade Mark Ownership, Protection and Rights 2.1 Types of Trade Marks German trade mark law establishes different types of trade marks. Registered trade marks are the most commonly used; however, several unregistered signs – such as unregistered trade marks that have acquired protection by virtue of extensive use, company desig - nations and domains – and indications of geographi - cal origin are also protected. In general, industrial designs can acquire trade mark protection as they are signs. However, the require - ments for this are high. Provided that the sign is appropriate and distinctive, any type of perceptible sign might be protected as a trade mark. Consequently, besides word marks and figurative marks, there are also combined word/figura - tive marks, sound marks, olfactory (smell) marks, col -
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