Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.
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FRIDAY, 6 JUNE 2014
DPMA: "Notice on how to deal with black-and-white trade marks"
In light of OHIM's Convergence Programme to harmonise EU national trade mark practices, the German Patent and Trademark Office (DPMA) recently published a " "Notice on how to deal with black-and-white trade marks" (helpfully also available in English, here)
Most notably, the following applies:
"When examining for priority or double identity of a sign, its "identity" is decisive. To interpret this vague legal term, the following principles have been agreed on:
Posted by: Birgit Clark @ 12.34
DPMA, black and white trade marks,
- As a rule, an older black-and-white word/figurative or figurative mark is not identical to the same sign in colour.
- Exception: if the differences are so minor that the average consumer does not notice them.
- That means that in such cases where the identity of two signs is decisive, the protection of the older trade mark is basically limited to the black-and-white representation.
Important: The common principles concern priority and double identity, however, not the similarity between marks pursuant to Section 9(1) no. 2 of the Trade Mark Act. The following still applies in this case:
- Protection of a black-and-white registration extends to all coloured representations.
- Exception: if it is the colour that leads to a special effect of the image.
Regarding the use of a trade mark in a shape which deviates from the registration, the following principle still applies:
- The use of a black-and-white word/figurative mark in a shape which deviates in its colour from the registration (and vice versa) is deemed use of the registered trade mark insofar as the deviation does not affect its distinctive character."
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