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In Europe, patents are granted for technical inventions that are novel, involve an inventive step and are susceptible of industrial applicability.
Additionally, the invention must not be excluded from patentability by law.
Whichever type of application you decide to complete, before applying for it you should try to determine whether or not the application has any chances of being accepted. In addition to the requirement that nobody else is using the trademark you want to use (or a similar sign), your trademark must also be distinctive, meaning that it cannot be so generic that it merely describes the products to be offered instead of their source.
Although fulfilling the definition of a trademark, a sign may not be registered as a trademark if an absolute ground for refusal applies, namely if:
- the sign lacks any distinctive character. This mainly deals with descriptive and generic trademarks:
- Descriptive marks: marks that describe the goods or services with which they are associated. You cannot protect “pen” for writing instruments or pens, for example.
- Generic marks: Generic words are common words that describe an entire class of goods or services. These words are not an indication of the source of the goods or services, and should then be avoided when choosing a potential mark. You cannot protect the name “seats” for chairs, for example.
- Combination of two or more terms without distinctive character will not create a trademark capable of protection, and will also be refused
- the sign exclusively aims at designating the nature, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or services. You cannot protect the mark “1 EUR” or “high quality”, for example.
- the sign has become customary in the current language or in the bona fide and established practices of the trade
- the sign is contrary to public order or to accepted principles of morality: scandalous or immoral marks offend the conscience.
- the sign is of such a nature as to deceive the public, for instance as to the nature, quality or geographical origin of the goods or services.
Furthermore, the trademark Offices will not register a trademark that contains:
- a national flag or emblem
- other governmental, foreign or international insignia, flags or emblems (including for example the European Emblem).
If you nonetheless decide to use a generic, descriptive or deceptive term, we recommend filing of your trademark as a logo only.
Word trademarks can be protected:
- A business name, phrase or logo may be registered as a trademark if it is fanciful, arbitrary or suggestive.
- Fanciful signs - Fanciful marks are generally marks without a dictionary meaning.
- Arbitrary signs - Arbitrary marks have nothing to do with the goods or services with which they are associated. Examples include DieselTM for clothing and AppleTM for computers.
- Suggestive signs - Suggestive marks indirectly refer to the goods or services with which they are associated.
A logo can also be registered. Please however note that your protection will then be limited to this specific graphic representation, and the colours depicted in the graphic representation. You may have more difficulties in enforcing your rights than with a word trademark.
Logos may nonetheless be used if your word trademark has no distinctive character.
A patent is an intellectual property right granted by a national or inter-governmental authority that confers onto its proprietor a monopoly to exploit the patented invention.
In essence, a patent allows its proprietor to forbid manufacture, sale, offer for sale and use of the patented invention without his consent.
In Europe, the European patent systems provides for a centralised examination and grant procedure. Upon grant, the European patent splits into a bundle of national patents and the conditions of infringement depend on national laws.
A company's tasks are not confined to organisation and production, but also concern commercialisation of its products and services.
A company's goods and services, as well as its image, have to be visible on the market(s) where products and/or services are to be sold. The trademark is an indispensable instrument for communicating with the public. It also supports the development of the company. The trademark is therefore a key element of the company policy; as a marketing tool it may even constitute the company's main asset. A trademark does not only identify the manufacturer or the service provider: it establishes a trust-based relationship with the purchaser or consumer by offering, inter alia / among others, a guarantee of quality and of origin, i.e. that a Trademark guarantees that the goods and/or services will possess the same level of quality and will originate from the same company, authorising the customer to easily repeat its purchase.
A trademark shall meet two conditions:
- a trademark must be a sign which can be represented in a graphic form,
- and it must make it possible to distinguish goods and services from those of another company.
A Trademark accordingly usually protects a word, phrase, symbol, design, or combination of these things.
Here's the legal definition of a trademark:
“A trademark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.”
A trademark is not:
- A patent: this right protects the new physical characteristics of a product, or a new method.
- A copyright: this right protects an original expression (artistic or otherwise). For example, music, art, books, and website articles are subject to copyright.
The elements TM, SM and ® mainly relate to US requirements and are therefore not required in the European Union: there is no legal basis which makes such use compulsory. However, the owner of the trademark may freely choose to use them.
According to US Law, anyone claiming rights in a mark may use the TM or SM symbols, even prior to registration. The ® symbol may only be used after the mark is registered.
We accordingly recommend using the TM or SM symbols as long as your trademark has not been registered, if you decide to use a symbol.