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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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Anthonia Ghalamkarizadeh
Birgit Clark
Blog Administrator
Christian Tenkhoff
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Stefan Schröter
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Yvonne Onomor
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:

  • 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."
Posted by: Birgit Clark @ 12.34
Tags: DPMA, black and white trade marks,
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