Just a few days before Europe headed into the 2010 Christmas break the General Court released a range of decisions that had a very festive topic as if the Court had scheduled it right on time to get into the right Christmas mood.

The Court dealt with the question whether the three-dimensional form of a chocolate object and/or its wrapping was suitable to be registered as a Community Trademark. In this specific case, the decisions dealt with a particular shape of a sitting chocolate Easter Bunny (Case No. T-395/08), the same bunny but in a golden wrapping and a red pleated ribbon with a bell around its neck (Case No. T-336/08), a reindeer, also in a golden wrapping with the same red ribbon and bell around its neck (Case No. T-337/08) and finally the red pleated ribbon with the bell itself (Case No. T-346/08).

If you are interested in obtaining a trademark or a design you surely have visited the websites of the relevant offices like GPTO (DPMA), OHIM or WIPO and you will have discovered that they provide a useful guidance and all necessary forms you need for registering your trademark or your design. So why should you spend money hiring an IP-lawyer? Why shouldn’t you do it all by yourself, you might ask yourself.

It’s true you can do it all by yourself. Most offices do not require that you are represented by a lawyer. But registering trademarks and designs by yourself bears a great risk that can most probably make the registration an extremely expensive adventure that might not even end with obtaining the trademark or the design. Here are four reasons why hiring us as your IP-lawyers is a good investment:

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© is an abbreviation of copyright but in Germany the designation of a work with this sign is not necessary as the copyright automatically is obtained with the creation of the work.
However it is very advisable to designate publications in the internet.Concerning the designation, the © should be accompanied with the name of the person holding the rights, the number of the year of the first time publication as well as the sentence: „All rights reserved“.

Instead of the ©, there might be a reference to §§ 53, 54 UrhG, which regulate the admissibility of replication and the duty of compensation, and to § 106 UrhG, regulating the criminal liability of unauthorized use.

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The protection begins with the creation of the work, lasting throughout its creator´s lifetime and being upheld for further 70 years after his death (as the right of his legal heirs).

Concerning anonymous works, the protection ends 70 years after their publication.

The creators of works of literature, science and art receive protection for their works through the German Copyright Law  (Urheberrechtsgesetz).
Works can be:
  1. Lingual works as writings, speeches, computer programs
  2. Works of music
  3. Pantomimical works and dance art
  4. Fine arts, including architecture and applied art, as well as there outlines
  5. Photographical works, including similarly constructed works
  6. Film works including similarly developed  works
  7. Scientific and technical representations e.g. drawings, plans, maps, outlines, etc.

The copyright comes into existance with the creation of the work, not depending on its publication. An unpublished manuscript contains the same copyright protection as a painting exhibited in a museum. In contrast to trademarks, designs and patents, the copyright does not have to be registered and no fees.

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There are two possibilities:

-    Application and registration at the GPTO (DPMA)/ OHIM / WIPO (so called Registered Designs). After application and registration, the design provides protection for 5 years, at first. Afterwards, the protection can be maintained, up to a maximum term of 25 years, by paying the obligatory extension fees every 5 years.

-  No registration, but commencement of use. The right automatically emerges with its publication (meaning: an exhibition, offering it for sale, a press release) EU-wide, with a term of protection of 3 years (so called Non-Registered Design).

Read why you need us to help you with the registration of a design.

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A design is a commercial property right, which assigns an exclusive right of use for an esthetic design - meaning the outer appearance of products - to its proprietor.

As designs, you could protect:

Two- or Three-dimensional appearances, with a certain design or color, form, shape, material, logos, icons, surface structure (e.g. the outward appearance of a mobile phone, an electrical device, a handbag, a lamp etc.).

BUT: No computer programs, no appearing attributes that only depend on their technical function, or those having to be rebuilt to enable the construction of another product.

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™  is the abbreviation of „Trademark“;

®  is the abbreviation of „Registered“

In Germany those symbols do not constitute a trademark but a registration is required. The use of these symbols is though only permitted in relation to a registered trademark. Otherwise there is an infringement of Competition Law.

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A trademark is obtained in most countries via a registration (not mere use). The protection of a  trademark covers only the territory and the goods and services for which the trademark was registered.

On a territorial level there are different  possibilities:

-     Application and registration at the German Patent and Trademark Office (GPTO) in Munich for German trademarks (http://www.dpma.de/).  German trademarks can claim protection in Germany only

-     Application and Registration at the Office for Harmonization in the Internal Market (OHIM) in Alicante, Spain, for Community Trademarks (http://www.oami.eu/).  A Community Trademark or EU-Trademark covers all EU Member States (currently 27)

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A trademark is a sign protected by law, serving to distinguish goods and services of one enterprise from those of another. Besides it implies the following functions of:

-  origin

-  communication

-  guarantee

There are different types of trademarks:
-  Expressions, letters or numbers  (wordmark),

-  A picture or logo (figurative mark), as well as the combination of words and pictures (word-design mark);

-  A color or a combination of colors (color mark);

-  Three-dimensional shapes (3-D-mark),

-  Radio-jingles or a combination of a melody (sound mark);

-  Slogans and even gestures (move mark)

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