Product name and trademarks

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Each of us is confronted with different product or model names on a daily basis. But can these names also establish their own rights against imitators?

The simple answer: no.

The background to this is that no rights can be derived from the product name unless it is also protected as a trademark. Unlike company names, which are mentioned in the Trademark Act and are treated in the same way as trademarks, there is no reference to product or model names. Accordingly, these cannot serve as a right of defence. This is of course problematic if competitors use identical or closely related designations. It is also irrelevant here how long this designation has been in use.

It becomes really problematic when product names from more recent trademarks are attacked. There is often a discussion as to whether the trademark owner should have been aware that the designation had already been in use for a long time and could therefore have been forfeited. However, this is usually difficult, and the forfeiture is difficult to prove (should have known), especially as this begins at the earliest from the date of trademark registration.

In order to create legal certainty here, it is advisable to register corresponding names as trademarks, as the registration law grants the trademark owner corresponding options.

If you have any questions about trademarks, please contact us.


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