As a first step, the previously known set of shapes (i.e. all designs that were available to the public before the design to be assessed was registered) must be determined. This is followed by an exact analysis of your own design, whereby it is “broken down” into individual features. These features are then used as a basis for comparison with the potentially infringing product. For example, if you compare two bags (your own product and a product which seems to be a copy) you look at all the features such as the straps, handles, body of the bag, rivets, prints, colour, texture, material etc. And then you compare those features to the respective features of the other bag. If the overall impression is similar, there might be a design infringement. How easy is it to detect trademark or design infringements and how do I enforce design rights? To detect a trademark or a design infringement it is our recommendation to install trademark and/or design monitoring. Depending on the scope of monitoring (only official registers, internet, online publications etc.), you will be informed of new and potential infringing applications and of use of identical or similar trademarks and designs in the marketplace. Regarding designs once a potentially infringing product has been detected, there must be a careful assessment. that area and may not file oppositions or cancellation applications against younger registered trademarks. In other trademark infringement cases we must compare trademarks on one side with a business name on the other side or we must assess whether there is a likelihood of confusion between two registered trademarks. Other trademark infringement actions focus on proving the use of the earlier sign. How are trademark infringements assessed in Germany? A trademark infringement is an impairment of the rights of the trademark owner, against which he can take legal action. It is generally not permitted to affix third-party trademarks to one’s own goods or offer services under them if this is done in the course of business. Trademarks are generally only protected for certain goods or services. So, if you sell food under the trademark “M”, you cannot keep a third party from offering shoes under the trademark “M”. Exceptions to this are famous trademarks that also enjoy protection in other classes of goods and services, which must always be assessed when evaluating a trademark infringement. In addition, the protection of trademarks is always limited to certain territories (e.g. Germany, European Union, USA). A trademark infringement exists if there is a so-called likelihood of confusion between two signs. According to established case law, three criteria are decisive for this, whereby these interact with each other, namely the similarity of the trademarks, the similarity of the goods and services identified by the trademarks and the degree of distinctiveness of the earlier trademark. WWW.LAWYER-MONTHLY.COM 25 Laura Rothmund-Feise Stumpf Patentanwälte PartGmbB
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