4 ms·

Of course an earlier trademark filing is better then a later one. But what does that have to do with the quesion here? The question is if an entity that start

Of course an earlier trademark filing is better then a later one. But what does that have to do with the quesion here? The question is if an entity that started using a trademark earlier would win in court over an entity that registered the trademark later. For all I know the answer is yes.

germanier 7y ago
The answer is indeed yes. Just have a look at the relevant law, § 12, § 4 Abs. 2 MarkenG, which is conviently available in some English translation: > The registration of a trade mark may be cancelled if another person has acquired rights to a trade mark prior to the date that is relevant for the seniority of the registered trade mark within the meaning of section 4 no. 2 or to a commercial designation within the meaning of section 5 and these entitle him to prohibit the use of the registered trade mark in the entire territory of the Federal Republic of Germany. Where the cited section 4 no. 2 is > The following shall give rise to trade mark protection: [...] the use of a sign in trade in so far as the sign has acquired public recognition as a trade mark within the affected trade circles https://www.gesetze-im-internet.de/englisch_markeng/englisch_markeng.html https://www.gesetze-im-internet.de/englisch_markeng/englisch...
- Roritharr 7y ago
  This is indeed the law, but how the courts interpret it is irrelevant for most startups, as "public recognition within the affected trade circles" is a very hard to pinpoint term and usually reserved for industry/category leading products such as "Tempo" or "Haribo Goldbären". You might try to go this route via a court-case, while the chances in our case with prior use and trade show appearance was evident were rated as very bad by our lawyers, but again, this is usually out of scope for the resource options of a startup/small business.
  - germanier 7y ago
    Courts indeed interpret it strictly. They use two criteria: 1. The mark has to be used in a commercial setting 2. The mark has to enjoy a reputation within that sector of the market 3. The mark has to have distinctive character Problematic is usually the second one. It is interpreted by the Federal Supreme Court that (bearing exceptional circumstances) at least 50% of participants in the market have to recognize the mark. The more generic the mark is, the higher the threshold.
    - merb 7y ago
      in germany it would've been in favor of clicker heroes. basically clicker heroes has a trademark in two countries. another company registered a trademark in their country and COPIED the game. this is basically extremly problematic. germany takes both copyright and trademark extremly serious and usually you can't register a trademark if it is also internationally recognized.
deleted 7y ago
[deleted]

germanier 7y ago

The answer is indeed yes. Just have a look at the relevant law, § 12, § 4 Abs. 2 MarkenG, which is conviently available in some English translation: > The registration of a trade mark may be cancelled if another person has acquired rights to a trade mark prior to the date that is relevant for the seniority of the registered trade mark within the meaning of section 4 no. 2 or to a commercial designation within the meaning of section 5 and these entitle him to prohibit the use of the registered trade mark in the entire territory of the Federal Republic of Germany. Where the cited section 4 no. 2 is > The following shall give rise to trade mark protection: [...] the use of a sign in trade in so far as the sign has acquired public recognition as a trade mark within the affected trade circles https://www.gesetze-im-internet.de/englisch_markeng/englisch_markeng.html https://www.gesetze-im-internet.de/englisch_markeng/englisch...

Roritharr 7y ago
This is indeed the law, but how the courts interpret it is irrelevant for most startups, as "public recognition within the affected trade circles" is a very hard to pinpoint term and usually reserved for industry/category leading products such as "Tempo" or "Haribo Goldbären". You might try to go this route via a court-case, while the chances in our case with prior use and trade show appearance was evident were rated as very bad by our lawyers, but again, this is usually out of scope for the resource options of a startup/small business.
- germanier 7y ago
  Courts indeed interpret it strictly. They use two criteria: 1. The mark has to be used in a commercial setting 2. The mark has to enjoy a reputation within that sector of the market 3. The mark has to have distinctive character Problematic is usually the second one. It is interpreted by the Federal Supreme Court that (bearing exceptional circumstances) at least 50% of participants in the market have to recognize the mark. The more generic the mark is, the higher the threshold.
  - merb 7y ago
    in germany it would've been in favor of clicker heroes. basically clicker heroes has a trademark in two countries. another company registered a trademark in their country and COPIED the game. this is basically extremly problematic. germany takes both copyright and trademark extremly serious and usually you can't register a trademark if it is also internationally recognized.

deleted 7y ago

[deleted]