Das Unionsrecht der Warennamen

Abstract

The term distinctive signs refers to trademarks, geographical Indications and appellations of Origin, Domain and other Names. EU law only provides rules on trademarks and geographical indications. All other characteristics and distinctive signs are subject to the national legislation. European trademark law and harmonized national trademark law in principle permit the registration of any sign as a trademark. In particular, all kinds of words, including personal names have the general capacity to constitute a trademark. The protection afforded by registration is however dependent on whether the concrete sign shows distinctiveness to which products or services it relates and alludes to its business origins. General terms or descriptive terms do not always provide sufficient distinctiveness to a sign. The combined use however of those general terms with descriptive terms can indeed be registered because they constitute a distinguishable identity. Artistic terms contrarily are mostly advantageous. Upon registration of a certain sign the owner obtains an exclusive right and as proprietor is the only one permitted to use said sign for labelling his / her products or services with the terms provided at registration. Trademark law stipulates use of a sign not only in relation to its respective product / services but also in relation to similar products / services where there is a likelihood of confusion to the consumer. Famous trademarks are in addition protected from measures of image transfers. The owner of the trademark can take actions against both the actual usage of identical signs or signs which induse confusion, and / or to achieve removal of a violating sign which is itself registered as a trademark. It is still possible to use one’s own name in business operations although a third party has previously registered it as a trademark or as a part of a trademark, as long as it is only used within reasonable habits of trade so that the identity or similarity will not be misused to gain the reputation of said third party’s trademark. It is possible to use third party trademarks to for the purpose of identifying or referring to goods or services as those of the proprietor of that trade mark, in particular, where the use of that trade mark is necessary to indicate the intended purpose of a product or service, in particular as accessories or spare parts.