Trade Mark law covers not only trade marks, but also business signs and geographical indications.
Business identifiers are signs used in the course of trade as a name, a company name or a special designation of a business or an enterprise. Classic examples of company signs are “Bäckerei Müller” or “Hotel Bergblick”. But also symbols, such as the Mercedes star, can be regarded as an indication of the company behind them and thus obtain protection as a company mark.
1. Origin of a company mark
In contrast to a trade mark, a business sign is created solely through the use of the sign in the course of trade and is not entered in a register. Accordingly, the search for business signs is only possible to a limited extent, e.g. by consulting the local company registers, which, however, do not claim to be complete, or by doing a Google search.
A business sign only develops its protective effect through mere use in the course of trade if the sign is distinctive. Distinctiveness exists if the relevant public can associate the signs with a company, i.e. if they do not have a purely descriptive content.
If a sign lacks distinctive character, protection can only arise if the sign has acquired a reputation, i.e. the relevant public associates the sign with a particular undertaking.
2. Scope of protection of business signs
In contrast to a trade mark, the territorial scope of protection of business signs refers only to the area in which the sign is actually known.
The factual scope of protection of business signs differs from trade marks in that it does not relate to specific goods and/or services, but only to the name of the company itself.
3. Collision between trade mark and business signs
Trademarks can not only collide with other trademarks, but also with business signs. Therefore, it is essential to search for business signs within the scope of possibilities, e.g. before registering a trade mark, in order to minimise possible infringements in advance.
But what is the advantage of a trade mark application if corresponding protection under trade mark law can also be obtained without registration?
4. Advantages of a trade mark over a business sign
The following points can represent added value for a trade mark application:
Proof of ownership
In the case of a trade mark application, there is no doubt as to the protectability due to the entry in the register. Ownership is thus clearly provable.
If, however, action is to be taken against an infringement of a business sign, the continuous use in the course of trade must be proven at great expense by means of advertisements, invoices or receipts.
Alienability of trade marks
Trademarks can be sold as an asset independent of the company. As a rule, business signs cannot be sold without the company.
The territorial scope of protection
The territorial scope of protection of a German trade mark “automatically” covers all of Germany; the same applies to a European Union trade mark for all member states of the European Union. In the case of a business sign, on the other hand, the territorial scope of protection depends on the actual extent of use or awareness and may therefore be limited to certain regions within Germany.