BUSINESS BRIEF: GERMANY
BUSINESS BRIEF: GERMANY Patents
How do you register or secure patent rights, and is national or international coverage most appropriate?
A patent can be obtained via a German, a European or an international (Patent Cooperation Treaty) patent
application. In any of these
cases, the application will undergo substantive examination before grant. Te maximum patent duration is 20 years from filing, subject to an annual maintenance fee payment. Utility models, which undergo formality examinations only, provide shorter-term protection of up to ten years.
A national patent application is preferable where Germany is the focus. Otherwise, the other two options become more attractive compared to
national filings. Strategic considerations,
for example differences between German and European processes, may also play a role.
Where can you find information on existing patents in your jurisdiction?
German and European patent registers are available online. Anyone may request physical file inspection.
Is there anything unusual about patent law that companies should be aware of, and what are the most common mistakes businesses make?
A civil court handling a litigation case cannot decide on the validity of
the patent, so the
defendant has to file an invalidation suit before the Federal Patent Court. Te civil court may stay the proceedings up to the invalidation suit’s decision. Proper strategic timing of actions is essential.
What are the key threats to patent owners, and what is the best strategy if you suspect someone is infringing your patent?
While German civil patent litigation courts
provide fast, foreseeable and typically patentee- friendly decisions, the key threat is invalidation
of the patent which is possible, for example on the basis of new prior art, at any time.
Patent enforcement strategy depends on the specific case. Enforcement tools range from sending warning letters or cease and desist letters to requesting customs action or preliminary injunctions or filing litigation suits of various scope.
Have there been any changes to the patent law(s) in the last 12 months?
In October 2013 there was a change to German patent
law that immediately introduced
regulations regarding an online file inspection. Further amendments that came into force on April 1, 2014 extended the delay for filing a German translation for parts of a patent application written in English or French from three to 12 months, or 15 months in several other circumstances.
Trademarks
How do you register or secure trademark rights, and what protection do they grant? National trademarks can be registered at
the
German Patent and Trade Mark Office (DPMA) for ten years. Any mark used to distinguish goods/ services in trade that can be represented graphically is registrable.
marks is only examined upon opposition.
Symbols used in trade in Germany that have become well known as a distinctive mark of a particular enterprise are protected without registration.
National registered trademark rights in Germany can be secured by applying for a European Community trademark with the Office for Harmonization in the Internal Market (OHIM) or an international trademark with the World Intellectual Property Organization (WIPO).
A trademark gives the owner the exclusive right to use the mark and to prevent others from using a sign similar or identical to it for the same or
118 World Intellectual Property Review Annual 2014
similar goods or services. Te owner can also prevent the registration of third parties.
What are the key threats to trademark owners, and what is the best strategy for dealing with infringement?
Te key threat to trademark owners is the unauthorised use of the trademark, especially as online infringements increase. Usually the first action against an infringer is a cease and desist letter in which further measures, especially court proceedings, are reserved.
What are the most common mistakes trademark owners make?
A common mistake is not to use the trademark as registered. A registered mark must be genuinely used in Germany for the goods and services registered within five years from the registration to be able to enforce it and to avoid its cancellation.
A trademark owner also needs to protect the mark and act against potential infringers to maintain the full value of the trademark.
Have there been any changes to trademarks law(s) in the last 12 months?
Identity or similarity with older
Tere have been no changes to national trademarks law in the last 12 months. Te latest version of the German Trademark Law was amended in November 2011.
Copyright
What are the key challenges to copyright holders in your jurisdiction? Copyright comprises a bundle of rights coming into existence when the protected work has been created by operation of
treaties (Berne Convention, WCT, etc) afford the mutual recognition of
copyrights by granting the same protection as a German resident would have under the German Copyright Act. Some aspects of German copyright law are harmonised in EU law (eg,
www.worldipreview.com
the law. International TRIPS, foreign
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