As Europe's largest economy and second most populous nation, Germany
is a key member of the continent's economic, political, and
defense organizations. European power struggles immersed Germany
in two devastating World Wars in the first half of the 20th century
and left the country occupied by the victorious Allied powers of the
US, UK, France, and the Soviet Union in 1945. With the advent of the
Cold War, two German states were formed in 1949: the western
Federal Republic of Germany (FRG) and the eastern German
Democratic Republic (GDR). The democratic FRG embedded itself in
key Western economic and security organizations, the EC, which
became the EU, and NATO, while the communist GDR was on the
front line of the Soviet-led Warsaw Pact. The decline of the USSR and
the end of the Cold War allowed for German unification in 1990. Since
then, Germany has expended considerable funds to bring Eastern productivity
and wages up to Western standards. In January 1999, Germany
and 10 other EU countries introduced a common European
exchange currency, the euro.
Who May Apply?
The proprietor of trademark applications and registrations can be a
natural person, a legal person, or a partnership having capacity to
acquire rights and incur liabilities.
What Can Be Registered?
Any sign not specifically excluded by Article 8 of the Act may be
What Cannot Be Registered?
Signs that cannot be represented graphically may not be registered.
The following signs may not be registered as trademarks?
(1) trademarks that are devoid of any distinctive character with respect
to the goods or services;
(2) trademarks that consist exclusively of signs or indications that
may serve, in trade, to designate the kind, quality, quantity,
intended purpose, value, geographical origin, time of production
of the goods or of the rendering of the services, or other
characteristics of the goods or services;
(3) trademarks that consist exclusively of signs or indications that
have become customary in everyday language or in the bona
fide and established practices of the trade for designating the
goods or services;
(4) trademarks that are of such a nature as to deceive the public,
especially as to the kind, quality, or geographical origin of the
goods or services; (5) trademarks that are contrary to public order or to accepted
principles of morality;
(6) trademarks that include armorial bearings, flags, or other
emblems of state, or armorial bearings of a locality, an association
of communities, or an association of other communal entities
(7) trademarks that include official signs and hallmarks indicating
control and warranty, according to a notice published by the
Federal Ministry of Justice in the Federal Law Gazette (Bundesgesetzblatt);
(8) trademarks that include armorial bearings, flags, or other signs,
seals, or designations of international intergovernmental
organizations according to a notice published by the Federal
Ministry of Justice in the Federal Law Gazette; and
(9) trademarks whose use is prohibited pursuant to other provisions
in the interest of the public.
Registration of a mark will not prevent any person from employing, even in an abridged form, on his goods or on their enclosure, his
name, firm name, or residence, or indications concerning the mode,
time, or place of manufacture, or the quality, destination, price,
quantity, or weight of the goods, or from making use of similar indications
The requirements for an application include:
-In the case of figurative marks, sound marks, or threedimensional
marks, four prints of the mark no larger than 26.2 x
17 cm, representing the mark.
- Convention: priority must be claimed within two months of filing
- Power of attorney: applicants are not required to submit a power
of attorney with their applications, with one exception. If either
the Patent and Trademark Office or a third-party questions the
validity of the representation, then a power of attorney must be
filed with the application.
Evaluation & Review
Applications must be filed at the German Patent and Trademark
Office, (Deutsches Patent- und Markenamt-DPMA).
After examination as to the registrability of the mark, the application
is granted and published in the Official Gazette. Within a period
of three months after the date of publication of the registration, oppositions
may be filed. The opposition may be based on the grounds
(1) the contested mark is identical to an earlier filed or registered
trademark, and the goods or services for which the trademark
is registered are identical with the goods or services for which
the earlier trademark is filed or is registered;
(2) because of its identity with, or similarity to, the earlier filed or
registered trademark, and in the identity or similarity of the
goods or services covered by the trademarks there exists a likelihood
of confusion on the part of the public, which includes the
likelihood of association with the other trademarks;
(3) if the contested mark is identical with or similar to an earlier
filed or registered trademark and has been registered for goods
or services that are not similar to those for which the earlier
trademark is filed or registered, where the earlier trademark
has a reputation in the Federal Republic of Germany and where
the use of the registered trademark without due cause would
take unfair advantage of, or be detrimental to, the distinctive
character or the repute of such trademark;
(4) if the contested mark is identical with or similar to an earlier
trademark well known in the Federal Republic of Germany
within the meaning of Article 6bis of the Paris Convention and
if the additional requirements under (I), (2) or (3) above are
(5) where a trademark is registered in the name of the agent or
representative of a person who is the proprietor of the trademark,
without the proprietor's authorization.
Registration is granted for a term of 10 years, beginning from the
day following the date of application, and is renewable for further
periods of 10 years.
The renewal fee is payable within two months following the expiration
of the preceding term, after which, if the fees have not been paid within due time, an additional fee for late payment has to be paid. If
payment is not made within six months from the expiration date, the
registration will be cancelled.
Proprietors not having a domicile, seat, or establishment in Germany
do not need a domestic representative for the renewal of the
The use of a registered mark must commence within five years from
the registration date. The date of registration will be replaced by the
date of the conclusion of the opposition proceedings in cases in which
an opposition to the registration has been lodged.
Use of the trademark in a form differing from the form in which it
was registered will be deemed to constitute use of a registered
trademark provided that the differing elements do not alter the
distinctive character of the trademark.
Affixing of the trademark to goods or to their packaging or wrapping
in Germany solely for export purposes will also be deemed to
constitute use of the trademark in Germany. According to Article 5
of the Agreement between Germany and Switzerland concerning the
protection of patents, designs, and trademarks dated April 13, 1892,
the use requirement is also fulfilled if a German trademark has been
used in Switzerland.
The central registry for domains under the Top Level Domain.de is
DENIC. DENIC administers and operates the Top Level Domain.de
and administrates all related functions. This includes, for example,
the provision and maintenance of the corresponding systems,
consultancy for and training of the members, support for and informing
the holders of registered domains, and attending to the interests
of the cooperative as well as those of the entire German Internet community. Domain applications may be submitted either through a DENIC
member or directly to DENIC (DENICdirect). DENIC will register the
domain if it has not already been registered for someone else using a
"first come, first served" basis. It may, however, reject the application
if the registration is manifestly illegal.
Disputes over domains must be brought before the German courts.
There is no domain dispute resolution center for the Top Level
Domain.de. If a claimant feels that his or her rights have been
infringed by a domain, a "DISPUTE entry" can be requested with
DENIC. When a domain involved in a dispute has a "DISPUTE entry"
placed on it, it becomes impossible for its holder to transfer it to a
third party. Moreover, the party in whose name the "DISPUTE entry"
has been made out automatically becomes the new holder of the
domain should the existing holder decide to abandon it.
Counterfeits and Seizure:
Foreign goods unlawfully marked with the name of a German firm
or place, or with a trademark registered under the law, are subject to
seizure and confiscation upon entry into Germany for importation or
transit on the demand of the injured party. The injured party must
post a bond before customs and revenue officers may undertake such
seizure. Confiscation will be adjudged by a penal decision of the
administrative authorities. One who improperly maintains a demand
for seizure will be liable for damages.
Duties and Seizure:
Whenever German goods introduced into a foreign country are
required to be marked to show their German origin or are treated less
favorably by customs officers than the goods of any other country with
respect to the marks they are required to bear, the State Minister of
Finance is empowered to impose a corresponding duty upon foreign goods on importation into Germany or for transit through Germany,
and, in the case of contravention, may order the seizure and confiscation
of the goods. Customs and revenue officers will then undertake
such seizure. Confiscation will be adjudged by a penal decision of the
The penalty for simple infringement is a maximum three-year
prison sentence or a fine. Intentional infringement on a commercial
basis, a new offense meant to combat those who are engaged in
counterfeiting as a business, is punishable by up to five years'
imprisonment or a fine. The attempt to infringe is also a punishable
offense. In addition to responding to the requests of intellectual property
owners, public prosecutors may now act on their own initiative to
protect proprietary rights if there is a particular public interest in the
In civil proceedings, plaintiffs are now entitled to a range of
remedies. They may apply for the destruction of counterfeit goods and
the means used to manufacture them. They are also entitled to receive from the infringer information on the origin and distribution of
counterfeit goods, as well as the names and addresses of manufacturers,
prior owners, and sales outlets. Where the infringement is obvious,
plaintiffs may request and courts may issue preliminary injunctions
mandating that such information be provided.
Owners of intellectual property may obtain the seizure of infringing
goods by customs authorities, both on export and import. Before the
customs authorities may act, however, it must be shown that a right
existing in the Federal Republic of Germany has been infringed.
Furthermore, customs authorities may act only where the infringement