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 regard - ing marks and copyrights are based on statutory law. The central statutory source of law regard - ing trade marks is the German Trade Mark Act ( Markengesetz or TMA); regarding copyrights it is the German Copyright Act ( Urheberrechtsge- setz or CA) and the Act on the Copyright Liabil - ity of Online Content Sharing Service Providers ( Urheberrechts-Diensteanbieter-Gesetz Urh - DaG). 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 Germany. Therefore, EU trade marks automatically protect the sign in the whole EU, including Germany. Regarding copyright protection, there is no equivalent to the EUTMR. The law of the respec - tive EU member state grants copyright protec - tion 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 Convention, the Paris Convention, TRIPS and the Madrid Protocol guarantee a minimum standard of rights, which signatories to these agreements have to warrant.
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 designations and
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