GERMANY Law and Practice Contributed by: Thomas Nägele, Steffen Henn, Anke Hofmann and Serpil Dilbaz, SZA Schilling, Zutt & Anschütz
4.8 Dividing a Trade Mark Application An applicant may declare to divide an appli - cation. The application for the trade mark will continue to be dealt with as a divisional appli - cation for the goods and services listed in the declaration of division. In this case, the seniority of the original application applies for each sub- application. The application documents required must be submitted for the divisional application. If they are not submitted within three months of receipt of the declaration of division, or if the fee for the division proceedings is not paid within this period, the divisional application is deemed to have been withdrawn. 4.9 Incorrect Information in an Application See 4.7 Revocation, Change, Amendment or Correction of an Application . 4.10 Refusal of Registration The most relevant absolute grounds for refusal to register a trade mark are: • the trade mark is not clearly and precisely defined; • lack of distinctiveness; • the trade mark contains descriptive terms that must be kept freely available for general use; • danger of deceiving the public; • an emblem of state included in the trade mark; • offence against public policy or accepted principles of morality; and • the trade mark has been applied for in bad faith, in particular, containing fraudulent mate - rial in the application.
However, the lack of distinctiveness may be repudiated (see 2.2 Essential Elements of Trade Mark Protection ). If absolute grounds for refusal are identified during the application examination process, the applicant will be notified in writing and will have the opportunity to make a statement. If it does not overcome all deficiencies stated in the notification, a decision will be taken to refuse the application in whole or in part. In this case, the applicant has the opportunity to have this decision reviewed by filing a request for recon - sideration ( Erinnerung ) or appeal proceedings ( Beschwerde ). 4.11 The Madrid System The TMA shall be applied to international trade marks registered in accordance with the Madrid Agreement Concerning the International Regis - tration of Marks (MMA) and in accordance with the Madrid Protocol of 27 June 1989 Relating to the Madrid Agreement Concerning the Interna - tional Registration of Marks (PMMA). Under the TMA, the application for the interna - tional registration of a trade mark entered in the register in accordance with the MMA or PMMA is to be submitted to the DPMA. Internationally PMMA-registered trade marks are to be exam - ined for absolute grounds for refusal in the same way as German trade marks. 5. Trade Mark Procedure for Inter Partes Proceedings 5.1 Timeframes for Filing an Opposition or Cancellation An opposition to a trade mark registration must be filed in writing within three months of the publication of the registration of a trade mark.
153 CHAMBERS.COM
Powered by FlippingBook