Trade Mark Law 31-35 PDF

【subtitle】 3 use is permitted by law. We can see here first only 2 was network persons as proprietor of the trademark. So when we are using just the name or the address, then 3rd parties are allowed to use that. (The law allows for 3 types of use. Here we can see that the first and only 2 are cybe...

【subtitle】 3 use is permitted by law. We can see here first only 2 was network persons as proprietor of the trademark. So when we are using just the name or the address, then 3rd parties are allowed to use that. (The law allows for 3 types of use. Here we can see that the first and only 2 are cyber people as the owner of the trademark. Therefore, when we use only the name or address, third parties are allowed to use it.) The second use which is permitted by law is when the different trademarks are not identical, so when they are distinctive, then it is allow to use them. So you can have brand apple with an apple phone and you can have a brand called apple which is completely different written, completely different outlook for example. And number 3, the trademark or the commercial designation for the purpose of identifying or referring to goods for services at those of the appropriate of the trademark, in particular, values for the trademark is necessary to indicate the intended purpose of the product or services in particular. For example, if you are providing charging cables for phones. Of course, you must be able to say, okay, this charging cable fits in this phone and this phone. And of course you have to give the company's name in order for people to simply know what fits and what doesn't fit. So that perfectly makes sense, okay, that you're able to use that in this context (And Section 3, the purpose of a trademark or trade name is to identify or refer to those marks that are appropriate for the goods or services, and in particular, the value of the mark is particularly necessary to indicate the intended purpose of the product or service. For example, if you offer cell phone charging cords. Of course, you must be able to say, well, this charging cord fits this cell phone and this cell phone, and, of course, you must provide the name of the company so that people know what fits and what doesn't. So, in this case, you are perfectly (and reasonably) fine with that.) j) Exhaustion, Sec 24 TMA Section 24 Exhaustion (1) The proprietor of a trade mark or of a commercial designation shall not be entitled to prohibit a third party from using the trade mark or the commercial designation for goods which have been put on the market under this trade mark or this commercial designation by him or with his consent in Germany, in one of the other Member States of the European Union or in another Contracting Party to the Agreement on the 31 European Economic Area. (The owner of a trademark or trade name shall not be entitled to prohibit third parties from using the trademark or trade name or goods placed on the market under the trademark or trade name with his consent in Germany, in other member states of the European Union or in another party to the Agreement on the European Economic Area.) (2) Subsection (1) shall not apply if the proprietor of the trade mark or of the commercial designation opposes the use of the trade mark or of the commercial designation in connection with the further commercialisation of the goods for legitimate reasons, in particular if the condition of the goods has been changed or impaired after being put on the market. (Paragraph (1) shall not apply if the owner of the mark or trade name objects for good reason to the use of the mark or trade name in the further commercialization of the goods, in particular if the goods have been placed on the market in a changed or impaired condition.) ◆ If the original product has been put on the market in the European Economic Area by the trademark owner or with his consent (distributor), the use of the trademark may not be prohibited to a third party (Third parties may not be prohibited from using the trade mark if the original product has been placed on the market in the EEA by the trade mark owner or with his consent (distributor).) ◆ Due to the principle of Europe-wide exhaustion, this also applies if the marketing has taken place in another state of the EU or the European Economic Area (Art. 34 TFEU) 【subtitle】 We have a general principle in section one and an exception from that in section two. The general principle is basically that once the product the original product has been put on the market with the trademark sign on it, then basically every third party should be allowed to use this trademark because the proper creator of the trademark of course had the opportunity, for example, by finding license agreements or just in general give contents to make commercial use of the trademark protection so he just had the opportunity to make money in the first place. Now that the product is on the market, it is very hard for the proprietor to go where the respective products are and therefore to know where possible trademark confusions might occur. Therefore, the law says okay, well in general, this trademark right is exhausted. So there is no infringing action possible here. However, and this is very important. Subsection two provides for exemption from that, in particular, when the appropriator plans for the further commercialization of the goods for legitimate reasons, which of course can be commercial reasons. So if he continuously plans to use this trademark in order 32 to put it on certain products or to put it on different products, then exhaustion does not apply. So we have a general principle and a very, very important exception to that. This is basically why trademarks do not exhaust in general. (We set out the general principles in section I and the exceptions in section II. The general principle is basically that once the product (the original product) has been placed on the market with a trademarked mark, then basically every third party should be allowed to use that mark because the proper creator of the mark certainly has the opportunity, for example, to commercially exploit the protection of the mark by looking for a license agreement or by just giving the content in general, so he has the opportunity to make money in the first place. Now that the product has been placed on the market, it is difficult for the trademark owner to know where the product is, and therefore where the trademark confusion is likely to occur. Therefore, the law provides that, generally speaking, trademark rights have been exhausted. Therefore, there can be no infringement here. However, this is a very important point. Subsection 2 provides an exemption from liability, especially if the user plans to further commercialize the goods for legitimate reasons (which can of course also be commercial). Thus, exhaustion does not apply if he continues to plan to use the mark in order to use it on certain products or to use it on different products. So we have a general principle and a very, very important exception. That's the basic reason why trademarks are generally not exhausted.) 7.4 Legal consequences of infringement of a trademark right ◼ ◼ Injunctive relief, Sec 14(5) TMA (ihtiyati tedbir) Compensation for damages, Sec 14(6) TMA ◼ Civil law claims according to Sec 1004 (1) German Civil Code (Secession and desistance) -civil liability (law)Criminal charges, Sec 143 et seqq TMA -criminal liability (law)- ◼ 8. Transfer, exploitation and licenses 8.1 Transfer ◼ Trademarks may be freely assigned or transferred in whole or in part, Sec 27 33 ◼ ◼ TMA Also possible without a company The presumption of ownership applies to the person entered in the register, Sec 28 (1) TMA (Presumption of ownership applies to registered persons) 【subtitle】Section 27, subsection 1 says we can transfer the rights deriving from the registration. However, we have to reform the German patents and trademarks office according to subsection three, and they need to put that into the register. (Section 27, subsection 1, provides that we can transfer the rights arising from registration. However, we have to reform the German Patent and Trademark Office under subsection 3, which they need to include in the register.) And then we have a presumption of property it should have the right in Section 28 Only it shall be presumed that the party recorded in the register as appropriator is entitled to the right arising from the registration. So it is so important that we do not only transfer the right between the parties but also make this transfer available to the public by entering that into the registration into the register (Then we have a presumption of property in article 28 that it should have rights, and only the party that is recorded in the registry as the possessor should be presumed to be entitled to the rights arising from the registration. So it is very important that we not only transfer rights between the parties, but also make that transfer accessible to the public through registration in the registry.) 8.2 Licenses ◼ ◼ Similar to licenses in patent law Exclusive license = Allows the licensee to prohibit the use of the protected subject matter in a certain territory, period or scope (even to the exclusion of the patent holder, if necessary) ◼ Non-exclusive license = permission under the law of obligations to use the protected subject matter => licensee not entitled to prohibit anyone else from using it (Non-exclusive License = use of protected subject matter is permitted under the law of obligations → licensee has no right to prohibit others from using the subject matter) 【subtitle】Exclusive licenses allows the licensees to prohibit the use of the Protect subject matter in a certain territory, in a certain period or in a certain scope and it might even exclude the patent appropriate for the trademark. It might exclude the trademark holder got the trademark appropriator from using the trademark. (An 34 exclusive license allows the licensee to prohibit the use of the protected subject matter in a certain area, for a certain period of time or to a certain extent, even to the exclusion of patents related to the trademark. It can exclude trademark registrants and trademark users from using the trademark.) On the other hand non-exclusive licenses are more restrictive in the use. So and they just given permission on that a lot of obligations to use the protected subject matter and the licensee is not entitled to permit to prohibit anyone else including the actual trademark owner from using the trademark. (On the other hand, nonexclusive licenses are more restrictive in their use. Thus, they only permit the use of the protected subject matter, and the licensee has no right to permit or prohibit the use of the mark by any other person, including the actual owner of the mark.) 9. The Union trademark Article 1, EU trade mark 1. A trade mark for goods or services which is registered in accordance with the conditions contained in this Regulation and in the manner herein provided is hereinafter referred to as a ‘European Union trade mark (“EU trade mark”)’. 2. An EU trade mark shall have a unitary character. It shall have equal effect throughout the Union: it shall not be registered, transferred or surrendered or be the subject of a decision revoking the rights of the proprietor or declaring it invalid, nor shall its use be prohibited, save in respect of the whole Union. This principle shall apply unless otherwise provided for in this Regulation. (The EU trademark has a unitary character. It has the same effect throughout the EU: it may not be registered, assigned or renounced, nor may it be the subject of a decision revoking the owner's rights or declaring it invalid, nor may its use be prohibited, except in relation to the whole of the EU. This principle applies unless otherwise provided for in this Regulation.) 【subtitle】The Union trademark is an independent trademark so independent from the trademark and the national law. However, the national law trademarks and the union trademarks are highly harmonized although they are still not the same. ( Affiliate trademarks are independent trademarks and therefore independent of trademarks and national laws. However, national law trademarks and Union marks are highly harmonized, although still not identical.) Article 4, Signs of which an EU trade mark may consist 35