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Get deeper insights into various aspects of trademark and design management in our team's articles. 

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Of trademarks, designs and other IP rights

When developing or refining a product, including its branding, a lot of time and money are invested in creating something unique that customers will need and love. To protect this financial and creative investment, legislators have decided to grant certain monopoly rights or intellectual property (IP) rights. So, how do you determine the appropriate type of protection for your product? In our blog (link) we have mainly discussed trademark protection. But trademark law is broader than you might expect. Besides the "name" of a product, other features such as the shape, the colouring or a sound can be protected as long as they are recognised as an indication of origin and no absolute ground for refusal, like the technical functionality of the feature, applies. Still, trademark law "merely" protects indications of origin. Fortunately, there are also other IP rights that should be considered as part of a protection strategy.

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The perks of International Registration

If you want to protect your trademark, there are a few things to consider:

  • How exactly will the trademark be used?
  • For which goods and/or services?
  • And – today's topic – where?
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Proper trademark use and trademark marking

Registering and monitoring your trademark are important tools to protect your trademark. It is also important to make sure to properly use the trademark and to indicate to the public that a word, logo or other sign functions as your trademark by marking it accordingly.

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Trademark searches: an essential step on the way to a new trademark

When developing a new brand, it is important to determine well before using the trademark and filing a trademark application whether there are any earlier conflicting trademark rights that could block use or registration. Trademark searches help to identify possibly conflicting earlier trademark rights and to better assess the risk associated with using and registering the brand.

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Priority principle in trademark law and intermediate rights

The priority principle in trademark law states that in the event of a conflict between two trademarks, the older right always prevails. As a rule, therefore, a trademark owner cannot defend themselves by claiming to be the owner of a later trademark.

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Recordals in the register – Keep records updated

Have you recently acquired another company or some assets like a trademark or even an entire trademark portfolio? Has your company merged with another company? Or has it changed its name or address? Then don't forget to enter the change in the corresponding Trademark Register.

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Problems with EUTMs? Conversion might be a solution!

Unlike national applications, which are protected only in a single country, the EU trademark offers protection in all member states of the European Union. Even if an obstacle to protection exists in only one member state of the EU or if owners of prior rights in a single country feel disturbed by the application, protection for the entire EU trademark is at risk due to the unitary effect. Thus, applicants for trademarks in the European Union often face a problem when the Office refuses to grant protection to a trademark based on absolute or relative grounds or when third parties file an opposition or cancellation request against the trademark.

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12 September 2023

austria

M.Gall M.Woller

How to: Notarisation and legalisation of IP documents

While the legalisation requirements in connection with the assignment of trademark registrations were abolished in Austria a few years ago, everybody dealing with registered IP rights around the world knows that there are notarisation and legalisation requirements for documents like powers of attorney, affidavits or deeds of assignment.

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Why is it important to document the use of my trademark?

Are you the proud owner of a trademark registration? – Please keep in mind that registration alone might not always suffice to ensure protection. In most jurisdictions, after a certain period of time you must prove that you are using your trademark for the protected goods/services – either actively or at least in case of a third-party contention. Otherwise, you risk the partial or total deletion of your trademark registration from the trademark register.

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You know it when you see it – Shapes as trademarks

Shapes can function as a clue to identify the source and differentiate between products of different companies. While browsing a store shelf, consumers often identify a product by its shape before even noticing its label. Shape marks offer a beneficial avenue to safeguard product designs, packaging, and containers in both Austria and the entire European Union.

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Pattern Marks – Relatively New Kids on the Block

Pattern trademark applications have only recently become feasible in Austria and at the EU level within the past few years and this particular form of trademark protects recurring elements of a pattern, irrespective of specific boundaries.

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Much harder than it looks! Drafting lists of goods and services

Trademark registrations protect trademarks for certain products. These are to be itemised in the "list of goods and services" or the "specification". As the specification defines the scope of protection for the trademark, it is – alongside the sign for which protection is sought – the most important part of the application.

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30 May 2023

austria

M.Woller

Trademark application in the fast lane: Austria's fast-track application

In our last blog, Michelle Duchon and Christian Schumacher reported on mandatory information for a national Austrian trademark application.

But how quickly can you get a trademark registered? With the fast-track application, it is possible to register a trademark within 10 working days.

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Just fill out a form? – Be diligent when filling out the trademark application

To file a national trademark application with the Austrian IP Office, mandatory information must be entered in an online form. While this sounds simple, several aspects should be considered to avoid problems.

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Do I have to register my brand or can I use it without registration?

You are well advised to, but in principle there is no legal requirement to register your trademark in the European Union. There are several good reasons to file a trademark application.

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21 February 2023

hungary

M.Kovács

Amendments to the Hungarian Trademark Act in 2023

Crucial amendments to the Hungarian Trademark Act entered into force on 1 January 2023. This Legal Insight briefly describes the most important changes.

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EU: How to rescue a design

Have you ever wondered whether you can modify a registered community design ("RCD") that is challenged by an application for declaration of invalidity by removing certain prohibited design elements to maintain the registration?

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14 June 2022

hungary

M.Kovács

Hungary: Not every fairy tale has a happy ending: the story of the Gömböc 3D trademark application

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Trademarks: The classification of "virtual goods" in trademark applications

Trademark professionals have noted growing interest in protecting trademarks for "virtual goods". This leaves trademark specialists as well as IP offices grappling with how to correctly classify these goods.

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Keep your records clean: Why it is absolutely necessary to keep trademark registers up to date

Change is part of everyday life. Some changes are temporary, some more permanent while we adapt to various challenges. However, particular attention should be paid to scenarios where the changes affect registered data.

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26 August 2021

austria

R.Vesenmayer

Trademarks: How conceptual differences can save your trademark applications

You want to apply for a trademark that is visually or phonetically similar to another trademark, perhaps it even is contained as a whole. Is this possible without infringing on someone else's trademark rights?

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NFTs and branding – Does trademark protection need to be considered?

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13 July 2021

G.Irsa-Klingspiegl

Trademarks: The aftermath of BREXIT – Are your trademarks and designs protected in the UK?

The transitional period for the withdrawal of the United Kingdom ("UK") from the EU ("BREXIT") ended on 31 December 2020. All European Union trademarks and Community designs registered at that time were automatically cloned as national IP rights in the UK.

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How fast can you get a trademark in Central & Eastern Europe?

When deciding to register a trademark, it is important to remember that the registration does not occur instantaneously. Since a registered trademark grants the holder an exclusive right to use it for the listed goods and/or services, providing the respective trademark office a certain amount of time to check the trademark is understandable.

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How to surprise the market: The secret trademark application

Plans to introduce a new product or service are often kept secret for a number of reasons. The later one's competitors become aware of an entirely new product or service, the longer one will enjoy the benefit of being the natural leader in that newly created market. In addition, famous companies in particular try to generate hype by creating an aura of mystery and focusing the public's attention on the big upcoming launch.

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Austria: Trademarks – The New Concept of Intervening Rights

With the EU trademark law reform, the possibilities to defend a later trademark against an earlier trademark have been significantly expanded due to the establishment of so-called intervening rights.

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trademark & design management

Schoenherr has more than 60 years of experience in the administration and enforcement of trademarks and designs, supporting clients in clearing, filing, maintaining, and defending their IP rights.