Developing a protectable lifestyle brand is not easy. On the one hand, it should convey a clear message that benefits the company. On the other hand, it should be able to be protected as a trade mark. In practice, it is a balancing act! The case below provides some guidance.
A cultural institution may try to position its unique structure as a cultural brand within the framework of cultural marketing. Strong cultural brands attract a lot of attention and engender particularly positive images. Customers, business partners and sponsors can form a quick connection with such brands and images. Is it possible to harness the power of cultural brands for the benefit of a variety of businesses?
It is not unusual for a company to develop a trademark that contains references to its product or service. However, in order to be protected, trademarks must not contain an inherently intelligible description of the essential characteristics of those goods or services. So what might these characteristics comprise?
Allusive marks are popular. They already contain references to the relevant products and their characteristics. Brand developers therefore like to try to ‘make up’ such marks from descriptive terms. But can this lead to problems? Other companies could always build their brands from the same basic words.
Websites often contain company advertisements and offers that are visible in a number of countries. But what happens if a name is used to advertise a product to which third parties in other Member States of the European Union have superior rights? Could this result in a trademark infringement in the foreign country and lead to legal action in that country? The Court of Justice of the European Union has recently published valuable advice in this respect.
Everyone knows Emmentaler – the famous, delicious cheese with the cherry-sized holes and the nutty taste. It was even around in the Middle Ages! Could its name ‘Emmentaler’ be protected as a collective trademark for the members of an association?
Consumers should be able to tell immediately whether the food they are eating is genetically modified. The German Federal Ministry of Food and Agriculture has therefore developed a dedicated GMO-free label, intended to identify the products bearing it as GMO-free. In the meantime, every fifth litre of milk from Bavaria is labelled as being ‘without genetic engineering’. But is the seal, as a trademark, protectable or not? Could it potentially deceive the consumer?
Signs that use the term ‘gourmet’ are very popular in relation to food products, not least because they indicate a higher-quality item. However, as an EU trademark, these signs have already been refused 50 times – because they are classed as advertising material only. They praise one’s own products, but they do not indicate the product’s origin as coming from a specific company.
In practice, trademark development is often carried out without due regard to the legally relevant criteria used to judge the likelihood of confusion with prior marks. This frequently leads to great disappointment and not infrequently to considerable damage. This is reason enough to take a brief look at some of these aspects.
Developing a trade mark requires a lot of thought and great creativity. Depending on the degree of creative activity, copyright protection may arise. This can have far-reaching consequences for the later use of the trade mark.