In Germany, industrial property rights are among the so-called intangible property rights (“intellectual property”) and grant their owner an absolute or exclusive right to the subject-matter protected. In comparison to copyright, which concerns the protection of personal intellectual achievements originating from the artistic field, only industrial property rights may protect inventions or aesthetic designs.
These include patents, utility models, trademarks, designs, supplementary protection certificates, semiconductor protection rights, plant variety protection rights and trade secrets.
An industrial property right can be obtained by an act of sovereignty, i.e. the granting and/or registration in a state register or a register maintained by an intergovernmental organization commissioned for this purpose. This applies, for example, to patents, utility models, registered trademarks or designs.
In addition, some industrial property rights in Germany can also come into existence through mere use, such as use marks through intensive use of a sign on the market, business designations such as company marks or work titles through the first use of a sign, or unregistered Community designs through the publication of a design in the European Community.
As already mentioned, an industrial property right grants an absolute or exclusive right to the object (e.g. an invention, a sign for goods and services, or a design) that is protected by the property right. This means that third parties – i.e. your competitors – are prohibited from using what is protected by your property right in their business dealings.
As the owner of such a property right, you can have a whole tree of claims against an infringer. For example, a claim for injunctive relief, with which you can prohibit your competitor from further use, a claim for damages, with which you can claim your lost profit, for example, a claim for destruction, a claim for information, with which you can gain insight into the origin and distribution channels of the infringing product, or even a claim for customs seizure. In addition, the infringement of an industrial property right is also relevant under criminal law – an infringer is therefore in principle liable to prosecution if he infringes your industrial property right.
First of all, industrial property rights are not inexpensive due to a number of factors. On the one hand, there are not inconsiderable costs for registration, examination, granting and maintenance by the authorities. On the other hand, these are also complex areas of law, which is why expert representation by a patent attorney or lawyer is almost indispensable, which also incurs costs. To make things easier, however, it can be said that the costs do not become due immediately, but are spread over the duration of an intellectual property right. However, it must be taken into account here that the maintenance costs increase successively with each due date.
To get a small feeling for the actual costs: the application fee for a German patent, for example, starts at 40€, the examination fee is 350€ and the annual fee for the 3rd patent year is 70€ – whereas the fee for the 20th and last patent year is already 1940€. It must also be taken into account that the preparation of a patent application is demanding and offers room for many errors – so for a legally stable property right should not be a wide berth around a patent attorney.
A patent is granted for a period of 20 years for an invention if it is in any field of technology and provided that it is new, involves an inventive step and is susceptible of industrial application.
You get the idea for a practical improvement of your cooking pot while cooking – here a patent could be considered.
However, inventions do not include mere discoveries as well as pure theories, aesthetic creations of form (because these are reserved for design protection), methods for mental activities (for example, the mere processing of calculation steps of an EDP program) or the reproduction of information.
The scope of protection of a patent is determined by so-called patent claims. These are basically text passages in which the protected subject matter is “described” in abstract legal terms and in which it is specified what exactly is protected. If another product falls under this “description”, then the patent is infringed.
The same is essentially true for utility models – with the difference that a utility model is a substantively unexamined property right (so it is usually registered immediately), it lasts only 10 years, and no processes can be placed under protection.
A registered trademark, on the other hand, protects a sign in relation to certain products, the so-called goods and services, for a period of 10 years, provided that the sign – among many other reasons – has, among other things, distinctive character, i.e. can be perceived as an indication of a company, and there is no need to keep it free, i.e. the sign does not have to be kept free for competition in order to be used as a descriptive indication (e.g. “green” for “apples”).
You are planning to make a name for yourself as a designer of handmade bags and also already have a good idea for a catchy logo. Here, for example, a word-picture trademark for the goods “backpacks and leisure bags” could be considered.
The scope of protection of a trademark is determined by its so-called distinctiveness. Here, a highly simplified, rough rule of thumb applies: the more a sign can be understood as descriptive for the goods and services, the lower the distinctiveness – and the more intensively a trademark is used, the higher it is.
The strong advantage of a trademark: you can extend the protection period of a trademark as often as you like for another 10 years. As a result, old and well-known trademarks in particular are often among a company’s most valuable assets.
Last but not least, a registered design protects the two- or three-dimensional (taste) appearance of a product for a period of up to 25 years, provided it is new and has individual character.
You are the above-mentioned designer and have now also produced the first models that have not yet existed on the market in this form and with which you are really satisfied. Here, a design protection for your designs could be a good idea.
Excluded from design protection, however, are, for example, appearance features of products that are exclusively technical in nature – this is what technical property rights, such as patents and utility models, are reserved for.
It’s actually quite simple: in almost every country in the world.
There is a whole range of intergovernmental treaties that have largely harmonized the protection of industrial property rights internationally. So you can obtain IP rights in Germany – these are examined, granted, registered and administered by the German Patent and Trademark Office (DPMA) – but also at European or international level. Or, if you only want to market your product in Azerbaijan, for example, you can do so directly there. For European IP rights, the EPO, the EUIPO and the Community Plant Variety Office are responsible. For international IP rights, the international office established at the WIPO.
Most countries in the world also recognize the so-called priority right under the Paris Convention, which allows you to first file in Germany or Europe and then – depending on the type of IP right – take 6 or 12 months to consider whether you would also like to market your product internationally and therefore also need an IP right in other countries.