Protection of ideas and property rights A good idea is worth money.
Patent and utility model
The subject matter of a patent and utility model is an invention, i.e. a technical solution to a technical problem.
A patent is created by registration in the patent register (or more precisely: the patent roll) at the German Patent and Trade Mark Office (for Germany) or at a foreign patent office.
The application requires a certain amount of effort for the exact technical description of the patent claim and is usually accompanied by patent attorneys who have also completed a technical degree. The successfully registered patent grants protection for a maximum of 20 years. The protection then ends; a further extension of the patent protection is not possible.
Certain areas can cause difficulties when patenting in Germany, as they are partially excluded from patent protection. These include the following areas:
Life science
Software "as such"
We have described the legal situation in the field of life sciences separately in the sections on industrial property rights and medical law.
Software "as such" means that a patent may not be granted simply because software - possibly even complex software - is present. It is also necessary that a technical problem is technically solved by or with the software. In the practice of software patenting, this creates considerable hurdles for patenting in Germany.
The utility model is a "small patent" with lower protection requirements. It grants protection from the time of application and can be registered for 10 years.
Copyright
Copyright protects creative works of literature, science and art. Photographs, film recordings and even CDs and other sound recordings can also be protected. In Germany, copyright law also protects software.
The special thing about copyright is that it does not require registration. Copyright arises with the act of creation, i.e. with the mere creation of the work, e.g. painting the picture, taking the photograph or programming the software. In Germany, it is also not necessary to affix a © symbol to create or maintain protection.
Since the mere act of creation is decisive for the creation of copyright, there is often an interest in documenting the act of creation as subsequent evidence. It is therefore sometimes recommended to deposit it with a notary or to send a self-addressed registered letter that is not opened. These means can help, but are often not necessary, especially if - as is usually the case - witnesses, emails or letters are available.
Not every work is covered by copyright. Rather, a certain level of creativity is required. A simple stick figure is therefore not protected. A poem, on the other hand, usually is. The hurdles are much lower for other protected objects. A photograph, for example, is almost always protected as a copyright or at least as a photograph (an ancillary copyright regulated in the Copyright Act).
The term of protection of copyright is 70 years after the death of the author; the decisive factor is therefore the time of death, not the time of creation or first publication. This is a considerable period of time. The term of protection is shorter for certain protected objects, e.g. 50 years after publication for simple photographs.
Design right
A design protects the appearance of a product.
It must be registered with the German Patent and Trade Mark Office (DPMA). The maximum term of protection is 25 years. The "pitfall" of a design is that it is registered (almost) without a substantive examination by the DPMA. A registered design may therefore later turn out not to be protectable at all. The protection provided by a design can therefore quickly prove to be deceptive.
Another frequent problem is the question of how the design to be protected should be reproduced. If, for example, the shape of a sweater is to be protected, it must be considered whether the overall impression of the sweater should actually be the subject of protection or, for example, only an individual pattern of the sweater.
Community design
The Community design is the European version of German design law.
There is also a non-registered Community design. As the name suggests, this property right does not require registration; it arises automatically - similar to German copyright law. However, the term of protection is limited to 3 years. It serves as protection for the textile and fashion industries, for example, as there is an increased need for protection in these industries due to the early presentation of new collections at exhibitions.
Trademark
A trademark is generally a registered trademark right. The best known are pure word marks (which consist only of letters, numbers and other common characters) and figurative marks (which consist of graphics). There is also the mixed form of a word/figurative mark, which is a figurative mark in which letters, numbers and other common characters and possibly a logo or other graphic elements are recognizable. Other trademark forms include the 3D mark, the olfactory mark, the color mark, the position mark, the sound mark and the tactile mark.
The term of protection of the registered trademark is initially 10 years, but can subsequently be extended indefinitely - provided that the official trademark fees are paid in each case.
Trade marks are registered in one or more of a total of 45 so-called Nice classes. The Nice Class system is a classification system that allows a quick, rough grouping according to which trademarks are granted protection for which categories of goods and/or services. It is possible for two identical trademarks to be registered for two different areas of goods or services without a conflict of trademarks. The rough classification according to the 45 Nice classes must be supplemented by a more detailed designation of the desired areas of protection when filing the application. This formulation must be done carefully, as it (as well as the selected Nice classes) can no longer be subsequently expanded and thus determines the maximum scope of protection of the trademark.
The principle of "first come, first served" almost always applies to trademarks and all other trademark rights (see below). This means that the owner of the earlier trademark or the earlier trademark right wins. For example, if you have owned a trademark "ABC" for 10 years, you can demand that it be canceled if it turns out that a third party registered its own trademark "ABC" for the same or similar goods and services a year ago.
It should be noted that the trademark office does not check whether there are any third-party rights that may conflict with the registration. A prior search is the responsibility of the trademark applicant. If a third party believes its rights have been infringed by a trademark application, it can file an opposition within a period of three months from the application date. Until a decision has been made on the opposition, the trademark (depending on the trademark office) is not or not finally registered. After the three months have expired, an opposition is no longer possible. However, a - possibly more costly - cancellation can be requested.
However, the trademark office already checks during the application procedure whether certain absolute grounds for refusal prevent registration. This usually includes an examination of the following grounds:
Is the trademark applied for so common that no one would recognize it as a trademark?
Is the trade mark applied for purely descriptive of the goods or services applied for? In other words, does the mark describe the goods or services instead of identifying them?
Is the trade mark applied for contrary to accepted principles of morality?
Trade marks can be registered with protection for Germany or for the entire EU. In addition or alternatively, an application can also be filed in - almost - any third country. Due to various agreements and international treaties, this system is highly automated so that trade marks can usually be registered internationally without any problems.
General personal rights and copyright law
The "right to one's own image" is very well known. It is regulated in the Art Copyright Act (KunstUrhG), according to which portraits may only be distributed or publicly displayed with consent.
The right under the Art Copyright Act, as well as the prohibition of libel and defamation, for example, is a special form of a much broader right, namely the general right of personality, which is enshrined in Articles 1 and 2 of the German Basic Law. Based on the general right of personality, press reports in words or images, for example, may be prohibited.
The general right of personality survives death, but then increasingly fades.
Work titles
Titles of works play a special role. These are the names or special designations of printed works, film works, sound works, stage works or other comparable works.
According to current case law, comparable works also include the names of "apps" for mobile devices and websites.
Work title protection arises with the commencement of use. However, a prerequisite is that the chosen title is "distinctive". The title must therefore be capable of distinguishing a work from another work; the public must not perceive the title as a purely descriptive indication. As a certain amount of time often passes before the final use of a title, e.g. the publication of a book or a smartphone app, provisional measures, such as the publication of a title protection notice, can be taken to prevent third parties from establishing their own title protection in the meantime.
Other trademark rights, naming rights, company names
In addition to trademarks, there are various other trademark rights, in particular
civil name rights,
company identification rights (e.g. the company name)
The other trademark rights generally arise with the mere commencement of use and are usually valid for the duration of use. This is a considerable advantage over registered trademarks. However, unlike a trademark, civil name rights, company name rights, company logos and other name rights are not transferable or are only transferable in special situations.
Other property rights
In addition to the aforementioned property rights, there are other special property rights, e.g.
Protection of variety denominations,
protection of geographical indications of source or
protection under the Semiconductor Protection Act.
Supplementary protection under competition law
General competition law grants supplementary protection under competition law. According to this, it is prohibited to act unfairly in competition and to offer imitations of the goods or services of a third party. This protection is subsidiary and has further requirements. The advantage of competition law is that no registration or similar is required. The protection arises automatically. Supplementary protection under competition law concerns constellations in which market participants are deceived about the commercial origin of a product or service due to the design, advertising or naming of a product or service, or in which the infringer impairs the value of their own goods or services.
Competition law also applies if business secrets, trade secrets, knowledge or documents are obtained dishonestly or passed on by employees without authorization. In these cases, there may even be protection under criminal law, making it possible to search the infringer via the public prosecutor's office.
Foreign property rights
Depending on the constellation, protection under a foreign legal system may also be of interest. For example, it is easier to obtain patent protection for software in the USA than in Germany or the rest of the EU.
If a trademark is to be used abroad, it is also strongly advisable to file an application in the foreign country concerned or to seek a more comprehensive trademark registration immediately. Instead of filing an application in four different individual EU member states, for example, it can be much easier and cheaper to file an application as an EU trademark or a partial extension of trademark protection via the World Intellectual Property Organization (WIPO).
Contractual know-how protection, non-disclosure agreement, NDA, CDA
The problem with technical property rights is that the secret to be protected must be disclosed. In the case of a patent, for example, the invention is published in the patent register. The patent expires after 25 years at the latest without the possibility of renewal. Anyone can now make use of the invention and produce replicas.
Sometimes there are also doubts as to whether a legal property right can be established at all. If, for example, it is a matter of protecting an initial, immature idea, a patent cannot yet be applied for. This is because there is not yet a (mature and reproducible) technical solution to a technical problem, which is, however, a prerequisite for patent protection. What happens in these cases?
In these cases, the idea should initially be kept secret until it has matured to such an extent that one of the statutory property rights can take effect. However, it is precisely in this development phase that there is a need to exchange ideas with third parties. To this end, contracts can be concluded with third parties that oblige them to maintain confidentiality. If the idea is published in breach of contract, claims for injunctive relief and damages arise. Contractual penalties can also be agreed. These contracts are referred to as non-disclosure agreements (NDA), confidential disclosure agreements (CDA) or know-how protection agreements.
Other subjects of protection can also be contractually regulated, such as a non-competition clause or a customer protection agreement. However, there are also limits to the possible arrangements, which depend on the respective market and the size of the contracting parties. In particular, German and European antitrust law must be observed.
Unlike statutory protective rights, contractual protective rights only provide protection vis-à-vis the respective contractual partner.
Statutory confidentiality obligations exist for special areas. A lawyer, for example, is required by law to observe confidentiality obligations towards his clients. Violations are punishable under criminal law (§ 203 StGB).
Update: Please note the changes that have occurred in the meantime due to the new Act on the Protection of Trade Secrets (GeschGehG), which we will report on in a separate event.