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Trade Mark Law of July 16 1998
Law on the Protection of Trade Marks and Other Signs (Trade Mark Law) |
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| (Text of October 25, 1994, as last amended by the Law of July 16, 1998) |
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Protected Trade Marks and Other Signs 1
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Application of Other Provisions 2
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Part 2: Prerequisites, Scope and Limits of Protection of Trade Marks and Commercial Designations; Transfer and License
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Chapter 1: Trade Marks and Commercial Designations; Priority and Seniority
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Signs Capable of Being Protected as Trade Marks 3
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Accrual of Trade Mark Protection 4
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Commercial Designations 5
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Chapter 2: Prerequisites for the Protection of Trade Marks by Registration
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Absolute Grounds for Refusal 8
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Filed or Registered Trade Marks as Relative
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Well-Known Trade Marks 10
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Trade Mark Registered in the Name of an
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Trade Mark Acquired by Use and Commercial Designations Having Seniority 12
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Chapter 3: Scope of Protection; Infringements of Rights
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Exclusive Right of the Proprietor of a Trade Mark; Injunctive Relief; Damages 14
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Exclusive Right of the Proprietor of a Commercial Designation; Injunctive Relief; Damages 15
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Reproduction of a Registered Trade Mark in Reference Works 16
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Claims Against Agents or Representatives 17
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Chapter 4: Restrictions to Protection
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Exclusion of Claims Due to Legal Validity of Registration of a Later Trade Mark 22
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Use of Names and Descriptive Indications; Trade with Spare Parts 23
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Exclusion of Claims Due to Non-Use 25
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Chapter 5: Trade Marks as Objects of Property
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Presumption of the Proprietorship of a Right; Service on the Proprietor 28
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Rights in rem; Levy of Execution; Bank-ruptcy Proceedings 29
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Trade Mark Applications 31
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Part 3: Proceedings in Trade Mark Matters
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Chapter 1: Registration Procedure Requirements of the Application 32
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Date of Filing; Right to Registration; Publication of Application 33
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Examination of the Application Requirements 36
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Examination as to Absolute Grounds for Refusal 37
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Accelerated Examination 38
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Withdrawal, Limitation and Correction of the Application 39
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Division of the Application 40
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Objection Due to Non-Use; Decision on the Opposition 43
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Action for the Grant of Registration 44
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Chapter 2: Correction; Division; Period of Protection and Renewal
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Correction of the Register and Publications 45
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Division of the Registration 46
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Period of Protection and Renewal 47
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Chapter 3: Surrender; Revocation and Nullity; Cancellation Procedure
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Nullity Due to Absolute Grounds for Refusal 50
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Nullity Due to Earlier Rights 51
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Effects of Cancellation on Grounds of Revocation or Nullity 52
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Cancellation by the Patent Office on Grounds of Revocation 53
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Cancellation Procedure Before the Patent Office on Absolute Grounds for Refusal 54
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Cancellation Proceedings Before Regular Courts 55
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Chapter 4: General Provisions for Procedures Before the Patent Office
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Exclusion and Challenge 57
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Investigation of the Facts; Right to Be Heard 59
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Examination of Facts; Hearing; Minutes 60
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Decisions; Information on the Right to Appeal 61
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Inspection of Files; Inspection of the Register 62
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Costs of the Proceedings 63
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Objection [Erinnerung] 64
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Power to Issue Legal Ordinances 65
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Chapter 5: Proceedings Before the Patent Court
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Boards of Appeal; Public Oral Proceedings 67
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Intervention of the President of the Patent Office in Appeal Proceedings 68
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Decision in Respect of Appeals 70
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Costs of Appeal Proceedings 71
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Exclusion and Challenge 72
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Investigation of Facts; Preparation of the Hearing 73
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Consideration of Evidence; Right to be Heard Before the Court 78
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Pronouncement; Service of the Decisions; Statement of Grounds 79
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Representation; Power of Attorney 81
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Application of Further Provisions; Appeals from Decisions; Inspection of Files 82
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Chapter 6: Proceedings Before the Federal Court of Justice [Bundesgerichtshof]
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Leave to Appeal on Points of Law 83
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Right to Appeal; Basis for an Appeal 84
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Examination of Admissibility 86
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Application of Other Provisions 88
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Decision on Appeals on a Point of Law 89
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Chapter 7: Common Provisions
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Duty to Tell the Truth 92
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Official Language and Language in Court 93
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Domestic Representative 96
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Registrability of Indications of Geographical Origin as Collective Marks 99
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Restrictions on Protection; Use 100
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Right of Action; Damages 101
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Regulations Governing Use of the Mark 102
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Examination of the Application 103
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Amendments of the Regulations Governing Use of the Mark 104
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Nullity Because of Absolute Grounds for Refusal 106
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Part 5: Protection of Marks Under the Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to the Madrid Agreement; Community Trade Marks
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Chapter 1: Protection of Marks Under the Madrid Agreement
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Application of the Provisions of this Law 107
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Application for International Registration 108
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Recordal in the Register 110
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Subsequent Territorial Extension 111
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Effect of International Registration 112
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Examination as to Absolute Grounds for Refusal 113
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Revocation of Protection a posteriori 115
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Opposition and Request for Cancellation on the Basis of International Registrations 116
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Exclusion of Claims for Non-Use 117
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Consent to the Transfer of an International Registration 118
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Chapter 2: Protection of Marks Under the Protocol Relating to the Madrid Agreement
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Application of the Provisions of this Law 119
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Application for International Registration 120
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Entry in the Files; Recordal in the Register 122
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Subsequent Territorial Extension 123
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Analogous Application of the Provisions Concerning the Effect of International Registrations of Marks Under the Madrid Agreement 124
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Transformation of an International Registration 125
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Chapter 3: Community Trade Marks Filing of Applications for Community Trade
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Marks with the Patent Office 125a
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Application of the Provisions of this Law 125b
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Later Invalidation of a Trade Mark 125c
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Conversion of Community Trade Marks 125d
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Community Trade Mark Courts; Community Trade Mark Litigation 125e
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Informing the Commission 125f
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Territorial Jurisdiction of the Community Trade Mark Courts 125g
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Insolvency Proceedings 125h
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Part 6: Indications of Geographical Origin
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Chapter 1: Protection of Indications of Geographical Origin
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Names, Indications or Signs Protected as Indications of Geographical Origin 126
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Injunctive Relief; Claim for Damages 128
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Chapter 2: Protection of Geographical Indications and Designations of Origin Under Regulation (EEC) No. 2081/92
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Application for Registration of a Geographical Indication or Designation of Origin 130
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Request to Amend the Specification 131
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Responsibilities in the Patent Office; Appeals 133
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Injunctive Relief; Claim for Damages 135
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Chapter 3: Authorization to Issue Legal Ordinances
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Detailed Provisions for the Protection of Individual Indications of Geographical Origin 137
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Other Provisions for the Procedure Concerning Applications, Requests and Oppositions Under Regulation (EEC) No. 2081/92 138
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Provisions Implementing Regulation (EEC)No. 2081/92 139
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Part 7: Procedure in Litigation Concerning Signs
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Litigation Concerning Signs 140
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Venue for Claims Under this Law and Under the Law Against Unfair Competition 141
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Reduction of the Value in Dispute 142
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Part 8: Provisions Governing Offenses Punishable with Imprisonment or Fines; Seizure on Import or Export
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Chapter 1: Provisions Governing Offenses Punishable with Imprisonment or Fines
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Punishable Infringement of Signs 143
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Punishable Use of Indications of Geo-graphical Origin 144
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Provisions Governing Fines 145
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Chapter 2: Seizure of Goods on Import or Export
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Seizure in Case of Infringement of Rights to a Sign 146
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Confiscation; Opposition; Release of Goods Seized 147
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Damages in the Case of Unjustified Seizure 149
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Seizure Under Regulation (EC) No. 3295/94 150
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Seizure in the Case of Unlawful Marking with Indications of
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Geographical Origin 151
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Part 9: Transitional Provisions
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Application of this Law 152
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Restrictions on the Assertion of Claims for Infringement 153
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Rights in rem; Enforcement; Proceedings in Bankruptcy 154
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Examination of Trade Mark Applications as to Absolute Grounds for Refusal 156
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Publication and Registration 157
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Opposition Proceedings 158
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Division of an Application 159
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Period of Protection and Renewal 160
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Cancellation of a Registered Trade Mark on the Grounds of
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Revocation 161
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Cancellation of a Registered Trade Mark Because of Absolute Grounds for Refusal 162
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Cancellation of a Registered Trade Mark Due to Earlier Rights 163
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Objection and Direct Appeal 164
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Transitional Provisions 165
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Protected Trade Marks and Other Signs
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1. The following shall be protected under this Law:
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2. commercial designations;
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3. indications of geographical origin.
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Application of Other Provisions
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2. The protection of trade marks, commercial designations and indications of geographical origin under this Law shall not exclude the application of other provisions for the protection of these signs.
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| PART 2
PREREQUISITES, SCOPE AND LIMITS OF PROTECTION OF TRADE MARKS AND COMMERCIAL DESIGNATIONS; TRANSFER AND LICENSE |
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| Chapter 1
Trade Marks and Commercial Designations; Priority and Seniority |
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Signs Capable of Being Protected as Trade Marks
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3.—(1) Any signs, particularly words, including personal names, designs, letters, numerals, sound marks, three-dimensional configurations, including the shape of goods or their wrapping as well as other packaging, including colors and combinations of colors, which are capable of distinguishing the goods or services of one undertaking from those of other undertakings may be protected as trade marks.
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(2) Signs which consist exclusively of a shape
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1. which results from the nature of the goods themselves;
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2. which is necessary to obtain a technical result; or
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3. which gives substantial value to the goods,
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shall not be capable of being protected as trade marks.
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Accrual of Trade Mark Protection
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4. Trade mark protection shall accrue
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1. by registration of a sign as a trade mark in the Register kept at the Patent Office;
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2. through the use of a sign in the course of trade insofar as the sign has acquired a secondary meaning as a trade mark within the affected trade circles; or
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3. by notoriety as a trade mark within the meaning of Article 6bis of the Paris Convention for the Protection of Industrial Property (Paris Convention).
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5.—(1) Company symbols and titles of works shall be protected as commercial designations.
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(2) Company symbols are signs used in the course of trade as names, firm names or special designations of business establishments or enterprises. Business symbols and other signs intended to distinguish one business from another which are regarded within the affected trade circles as the distinctive signs of a business establishment, shall be equivalent to the special designation of a business establishment.
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(3) Titles of works are the names or special designations of printed publications, cinematographic works, musical works, dramatic works or other comparable works.
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| Chapter 2
Prerequisites for the Protection of Trade Marks by Registration |
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7. The following may be proprietors of registered and filed trade marks:
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3. partnerships having capacity to acquire rights and incur liabilities.
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Absolute Grounds for Refusal
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(2) The following shall not be registered:
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1. trade marks which are devoid of any distinctive character with respect to the goods or services;
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2. trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of the goods or of the rendering of the services, or to designate other characteristics of the goods or services;
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3. trade marks which consist exclusively of signs or indications which have become customary in the current language or in the bona-fide and established practices of the trade for designating goods or services;
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4. trade marks which are of such a nature as to deceive the public, in particular, as to the nature, quality or geographical origin of the goods or services;
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5. trade marks which are contrary to public policy or to accepted principles of morality;
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6. trade marks which include armorial bearings, flags or other emblems of State, or armorial bearings of a locality, an association of communities or an association of other communal entities within the country;
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7. trade marks which include official signs and hallmarks, indicating control and warranty, which, according to a notice published by the Federal Ministry of Justice in the Federal Law Gazette [Bundesgesetzblatt], cannot be validly registered as trade marks;
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8. trade marks which include armorial bearings, flags or other signs, seals, or designations, of international intergovernmental organizations which, according to a notice published by the Federal Ministry of Justice in the Federal Law Gazette, cannot be validly registered as trade marks; or
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9. trade marks the use of which can obviously be prohibited pursuant to other provisions in the public interest.
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(4) Subsection (2), Nos. 6, 7 and 8, shall also apply if the trade mark includes the imitation of a sign specified therein. Subsection (2), Nos. 6, 7 and 8, shall not apply where the applicant is authorized to include one of the signs specified therein in his trade mark even if it may be confused with another of the signs specified therein. Furthermore, subsection (2), No. 7, shall not apply where the goods or services for which the application for registration of the trade mark has been filed are neither identical with nor similar to those for which the sign or hallmark, indicating control or warranty, has been introduced. Furthermore, subsection (2), No. 8, shall not apply where the trade mark filed is not of such a nature as to falsely suggest to the public that a connection exists between the trade mark and the international intergovernmental organization.
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Filed or Registered Trade Marks as Relative Grounds for Refusal
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9.—(1) Registration of a trade mark may be canceled
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1. if it is identical with an earlier filed or registered trade mark, and the goods or services for which the trade mark is registered are identical with the goods or services for which the earlier trade mark is filed or is registered;
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2. if because of its identity with, or similarity to, the earlier filed or registered trade mark, and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the other trade marks; or
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3. if it is identical with or similar to an earlier filed or registered trade mark, and has been registered for goods or services which are not similar to those for which the earlier trade mark is filed or registered, where the earlier trade mark has a reputation in the Federal Republic of Germany and where the use of the registered trade mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or the repute of such trade mark.
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10.—(1) A trade mark shall not be registered if it is identical with or similar to an earlier trade mark well known in the Federal Republic of Germany within the meaning of Article 6bis of the Paris Convention and if the additional requirements under Section 9(1), Nos. 1, 2 or 3, are met.
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Trade Mark Registered in the Name of an Agent
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11. Where a trade mark is registered in the name of the agent or representative of a person who is the proprietor of the trade mark, without the proprietor’s authorization, the registration of the trade mark may be canceled.
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Trade Mark Acquired by Use and Commercial Designations Having Seniority
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2. a right of personal portrayal;
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4. names of plant varieties;
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5. indications of geographical origin;
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6. other industrial property rights.
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| Chapter 3
Scope of Protection; Infringements of Rights |
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Exclusive Right of the Proprietor of a Trade Mark; Injunctive Relief; Damages
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(2) Third parties shall be prohibited from using in the course of trade, without the consent of the proprietor of the trade mark,
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1. any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is protected;
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2. any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public, including the likelihood of association between the sign and the trade mark; or
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3. any sign which is identical with or similar to the trade mark in relation to goods or services which are not similar to those for which the trade mark is protected; where the trade mark has a reputation in the Federal Republic of Germany and where the use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of such trade mark.
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1. affixing the sign to goods or to their packaging or wrapping;
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2. offering the goods, putting them on the market or stocking them for these purposes under that sign;
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3. offering or supplying services under that sign;
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4. importing or exporting the goods under that sign;
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5. using the sign on business papers or in advertising.
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(4) Without having the consent of the proprietor of the trade mark, third parties shall be prohibited in the course of trade from
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1. affixing a sign which is identical with or similar to the trade mark to packaging or wrappings or to means of marking such as labels, tags, sewn-on labels or the like;
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2. offering packaging, wrappings or the means of marking under a sign which is identical with or similar to the trade mark, putting them on the market or stocking them for these purposes under that sign; or
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3. importing or exporting packaging, wrappings or means of marking under a sign which is identical with or similar to the trade mark,
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(6) Any person who undertakes such infringing action intentionally or negligently shall be liable for compensation to the proprietor of the trade mark for damage suffered therefrom.
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(7) Where an employee or an authorized representative undertakes such infringing action in a business establishment, the proprietor of the business establishment may be sued by the proprietor of the trade mark to enjoin such use and, where the employee or authorized representative has undertaken such action intentionally or negligently, compensation for damages may also be claimed from the proprietor of the business establishment.
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Exclusive Right of the Proprietor of a Commercial Designation; Injunctive Relief; Damages
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15.—(1) The acquisition of protection for a commercial designation shall confer on its proprietor an exclusive right.
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(2) Third parties shall be prohibited from using in the course of trade, without authorization, the commercial designation or a similar sign in a manner capable of causing confusion with the protected designation.
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(5) Any person who undertakes such infringing action intentionally or negligently shall be liable for compensation to the proprietor of the commercial designation for damage suffered therefrom.
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Reproduction of a Registered Trade Mark in Reference Works
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16.—(1) If the reproduction of a registered trade mark in a dictionary, encyclopedia, or similar reference work gives the impression that it constitutes the generic name of the goods or services for which the trade mark is registered, the proprietor of the trade mark is entitled to demand of the publisher of the work that the reproduction of the trade mark be accompanied by an indication that it is a registered trade mark.
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Claims Against Agents or Representatives
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(3) Further claims to destruction shall remain unaffected.
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(3) In those cases where infringement is obvious, the obligation to provide information may be imposed by an injunction in compliance with the Code of Civil Procedure [Zivilprozessordnung].
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(5) Further claims to information shall remain unaffected.
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| Chapter 4
Restrictions to Protection |
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(2) Section 852(2) of the Civil Code [Bürgerliches Gesetzbuch] shall apply mutatis mutandis.
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(3) If the infringer has obtained anything through the infringement at the expense of the claimant, the said infringer shall be liable, even after expiration of the term of limitation, for the restitution in accordance with the provisions on restitution of unjust enrichment.
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21.—(1) The proprietor of a trade mark or a commercial designation shall not be entitled to prohibit the use of a later registered trade mark in respect of the goods and services for which it is registered where he has acquiesced, for a period of five successive years, in the use of this trade mark while being aware of such a use, unless the application for the later trade mark was filed in bad faith.
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Exclusion of Claims Due to Legal Validity of Registration of a Later Trade Mark
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22.—(1) The proprietor of a trade mark or a commercial designation shall not be entitled to prohibit the use of a later registered trade mark in respect of the goods and services for which it is registered, where a request for cancellation of the registration of the later trade mark has been rejected or should be rejected on the grounds
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2. that the registration of the earlier trade mark could have been canceled on the date of publication of the registration of the later trade mark due to revocation or absolute grounds for refusal (Section 51(4)).
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Use of Names and Descriptive Indications; Trade with Spare Parts
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23. The proprietor of a trade mark or commercial designation shall not be entitled to prohibit third parties from using in the course of trade
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2. signs which are identical with or similar to the trade mark or commercial designation as indications concerning characteristics or properties of the goods or services, in particular, the kind, quality, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the services; or
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3. the trade mark or commercial designation where it is necessary to indicate the intended purpose of a product or service, in particular as accessories or spare parts,
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provided such use is not contrary to accepted principles of morality.
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24.—(1) The proprietor of a trade mark or a commercial designation shall not be entitled to prohibit its use in relation to goods which have been put on the market in the Federal Republic of Germany, in another Member State of the European Union or in another Contracting State of the Convention concerning the European Economic Area under that trade mark or commercial designation by the proprietor or with his consent.
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Exclusion of Claims Due to Non-use
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(2) Where a plaintiff asserts claims on grounds of infringement of a registered trade mark within the meaning of Sections 14, 18 and 19 by bringing an action, he shall, in response to an objection by the defendant, establish proof that the trade mark has been put to use pursuant to Section 26 within a period of five years before the bringing of the action, for the goods or services on which the grounds for his claims are based, provided that the trade mark has, on that date, been registered at least for five years. Where the period of five years of non-use ends after the bringing of the action, the plaintiff shall, in response to an objection by the defendant, establish proof that the trade mark has been put to use pursuant to Section 26 within a period of five years preceding the conclusion of the oral proceedings. For the decision, only those goods or services shall be taken into account for which proof of use has been established.
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26.—(1) Insofar as the assertion of claims resulting from a registered trade mark or the maintenance of the registration depends on the use of the trade mark, the proprietor must have put the trade mark to genuine use in this country in connection with the goods and services in respect of which it is registered, unless there are proper reasons for non-use.
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(2) Use of the trade mark with the consent of the proprietor shall be deemed to constitute use by the proprietor.
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(3) Use of the trade mark in a form differing from the form in which it was registered shall also be deemed to constitute use of a registered trade mark, provided that the differing elements do not alter the distinctive character of the trade mark. Sentence 1 shall also apply if the trade mark is also registered in the form in which it has been put to use.
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(4) Affixing of the trade mark to goods or to their packaging or wrapping in this country solely for export purposes shall also be deemed to constitute use of the trade mark in this country.
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(5) Where use within five years from the date of registration is required, the date of registration shall be replaced by the date of the conclusion of the opposition proceedings in the cases in which opposition to registration has been lodged.
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| Chapter 5
Trade Marks as Objects of Property |
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27.—(1) The right conferred by the registration, use or notoriety of a trade mark may be transferred or assigned to another person in respect of some or all of the goods or services for which the trade mark is protected.
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(2) Where the trade mark relates to a business establishment or to a portion of a business establishment, the transfer or assignment of the business establishment or of that portion of the business establishment to which the trade mark relates shall include in the case of doubt the right accruing from the registration, use or notoriety of the trade mark.
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(3) On request of one of the parties the transfer of the right conferred by the registration of the trade mark shall be recorded in the Register, if proof thereof is furnished to the Patent Office.
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(4) Where the transfer of rights concerns only some of the goods or services for which the trade mark is registered, a fee as prescribed in the schedule of fees shall be paid with the request for recordal of the transfer. If the fee is not paid, the request shall be deemed not to have been filed. In other respects, the provisions concerning the division of the registration shall apply mutatis mutandis with the exception of Section 46(2) and (3), sentences 1 to 3.
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[Amended by Law of July 19, 1996]
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Presumption of the Proprietorship of a Right; Service on the Proprietor
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28.—(1) It is presumed that the person registered as proprietor in the Register is entitled to the right conferred by the registration of a trade mark.
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(2) If the right conferred by the registration of a trade mark has been assigned or transferred to a third party, the successor in title shall, in proceedings before the Patent Office, appeal proceedings before the Patent Court or proceedings of appeal on a point of law before the Federal Court of Justice, be able to assert the claim for protection of this trade mark and invoke the right conferred by the registration only from the date of the receipt of the request for registration of the transfer at the Patent Office. Sentence 1 shall apply mutatis mutandis to other proceedings before the Patent Office, appeal proceedings before the Patent Court or proceedings of appeal on a point of law before the Federal Court of Justice to which the proprietor is a party.
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(3) Orders and decisions of the Patent Office for which service to the proprietor of the trade mark is required, shall be served on the person registered as proprietor. If a request for registration of a transfer has been received at the Patent Office, the orders and decisions referred to in sentence 1 shall also be served on the successor in title.
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Rights in rem; Levy of Execution; Bankruptcy Proceedings
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29.—(1) The right conferred by the registration, use or notoriety of a trade mark
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1. may be given as security or be the subject of rights in rem; or
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2. may be levied in execution.
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(3) Where the right conferred by the registration of a trade mark is involved in insolvency proceedings, an entry to this effect shall be made in the Register at the request of the receiver or of the insolvency court. In the case of self-administration (Section 270 of the Insolvency Code [Insolvenzordnung]), the administrator shall act in place of the receiver.
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[Amended by Law of July 19, 1996]
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30.—(1) The right conferred by the registration, use or notoriety of a trade mark may be the subject of an exclusive or nonexclusive license for some or all of the goods or services for which the trade mark is protected and for the whole or part of the Federal Republic of Germany.
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(2) The proprietor of a trade mark may invoke the rights conferred by that trade mark against a licensee who contravenes any provision in his licensing contract with regard to
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1. the duration of the license;
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2. the form covered by the registration in which the trade mark may be used;
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3. the kind of goods or services for which the license has been granted;
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4. the territory in which the trade mark may be affixed; or
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5. the quality of the goods manufactured or the services provided by the licensee.
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(3) The licensee may bring an action for infringement of a trade mark only if the proprietor of the trade mark consents thereto.
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(4) Any licensee shall, for the purpose of obtaining compensation for damage suffered by him, be entitled to intervene in infringement actions brought by the proprietor of the trade mark.
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| PART 3
PROCEEDINGS IN TRADE MARK MATTERS |
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| Chapter 1
Registration Procedure |
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Requirements of the Application
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32.—(1) An application for registration of a trade mark in the Register shall be filed at the Patent Office.
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(2) The application shall contain
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1. information identifying the applicant;
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2. a representation of the trade mark; and
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3. a list of the goods or services in respect of which the registration is requested.
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(3) The application must comply with the other requirements laid down in the legal ordinance under Section 65(1), No. 2.
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(4) A fee as prescribed by the schedule of fees shall be paid with the application. Where registration is requested for goods or services falling within more than three classes of the classification of goods and services, a class fee as prescribed by the schedule of fees shall be paid in addition for each additional class.
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Date of Filing; Right to Registration; Publication of Application
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(2) A trade mark application which has been accorded a date of filing shall confer a right to registration. The request for registration shall be granted, unless the application requirements are not complied with or registration is prejudiced by absolute grounds for refusal.
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(3) A trade mark application which has been accorded a date of filing shall be published together with information identifying the applicant.
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[Amended by Law of June 22, 1998]
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34.—(1) Claiming priority of a previous foreign application shall be governed by the provisions of the international agreements subject to the proviso that priority under the Paris Convention may also be claimed for services.
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(2) Where the earlier foreign application has been filed in a State which is not bound by an international agreement on the recognition of priority, the applicant may claim a right of priority corresponding to that under the Paris Convention provided that, after publication by the Federal Ministry of Justice in the Federal Law Gazette, the other State grants a right of priority for a first filing with the Patent Office which is, according to its requirements and contents, comparable to that under the Paris Convention.
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35.—(1) If an applicant for the trade mark has displayed goods or services under the trade mark applied for,
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1. at an official or officially recognized international exhibition falling within the terms of the Convention on International Exhibitions signed at Paris on November 22, 1928, or
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2. at another exhibition in this country or abroad,
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he may, if he files the application within a period of six months from the date of the first display of the goods or services under the trade mark applied for, claim a right of priority from that date within the meaning of Section 34.
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Examination of the Application Requirements
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36.—(1) The Patent Office shall examine whether
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1. the trade mark application satisfies the requirements for according a date of filing in accordance with Section 33(1);
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2. the application complies with the other application requirements;
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4. whether the applicant may be the proprietor of a trade mark pursuant to Section 7.
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(3) If the fees are not paid, the applicant shall be informed by the Patent Office that the application shall be deemed to have been withdrawn, unless the fees and a surcharge as prescribed in the schedule of fees are paid within a period of one month after the service of the notification. If, within this period, the application fee and the surcharge, but not the required class fees, are paid, sentence 1 shall not apply where the applicant indicates which classes of goods or services are to be covered by the amount of fees paid. Where there is no such indication, the leading class shall be taken into account first followed by the other classes in the sequence of the subdivision of classes.
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(4) If other deficiencies are not remedied within a period fixed by the Patent Office, the Patent Office shall reject the application.
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Examination as to Absolute Grounds for Refusal
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(2) A fee according to the schedule of fees shall be paid with the request for accelerated examination. If the fee is not paid, the request shall be deemed not to have been made.
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Withdrawal, Limitation and Correction of the Application
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39.—(1) The applicant may at any time withdraw the application or limit the list of goods and services contained therein.
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(2) Upon request of the applicant, the content of the application may be amended by correcting errors of wording or of typing or other obvious mistakes.
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Division of the Application
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40.—(1) The applicant may divide the application by declaring that, for the goods and services referred to in the declaration, the trade mark application should thenceforth be dealt with as a divisional application. The seniority of the original application shall continue to apply to each part of a divided application.
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(2) The opposition may only be based on the grounds that the trade mark may be canceled due to
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3. its registration for an agent or representative of the proprietor of the trade mark pursuant to Section 11.
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Objection Due to Non-use; Decision on the Opposition
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43.—(1) If the proprietor of an earlier registered trade mark has given notice of opposition, he shall, if the other party contests the use of the trade mark, substantiate by prima facie evidence that, during the period of five years preceding the publication of the registration of the trade mark against which a notice of opposition has been given, the earlier registered trade mark has been put to use pursuant to Section 26, provided the earlier trade mark has at that date been registered for not less than five years. If the period of five years of non-use ends after the publication of the registration, the opponent shall, if the other party contests that use, substantiate by prima facie evidence that, during the period of five years preceding the decision on the opposition, the trade mark has been put to use pursuant to Section 26. In the decision, only those goods or services shall be considered of which use has been substantiated by prima facie evidence.
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(2) If examination of the opposition reveals that the trade mark must be canceled in respect of some or all of the goods or services for which it is registered, the registration shall be canceled in full or in part. If the registration of the trade mark cannot be canceled, the opposition shall be rejected.
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(3) If the registered trade mark has to be canceled because of one or several earlier trade marks, the proceedings with regard to further oppositions may be suspended until a decision on the registration of the trade mark has become final.
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Action for the Grant of Registration
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(3) Registration on the grounds of a decision in favor of the proprietor of the trade mark shall be recorded while preserving seniority of the registration.
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| Chapter 2
Correction; Division; Period of Protection and Renewal |
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Correction of the Register and Publications
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45.—(1) Registrations in the Register may be amended upon request or ex officio by correcting errors of wording or of typing or other obvious mistakes. Where the registration affected by the correction has been published, the corrected registration shall also be published.
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Division of the Registration
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46.—(1) The proprietor of a registered trade mark may divide the registration by declaring that, for the goods or services referred to in the declaration, the trade mark registration should thenceforth be maintained as a divisional registration. The seniority of the original registration shall continue to apply to each part of the divided registration.
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(2) The division may only be declared after the expiry of the time limit for giving notice of opposition. The declaration shall only be admissible where an opposition to the registration of a trade mark, pending at the time of declaration, or an action for cancellation of the registration of the trade mark, pending at the time of declaration, would, after the division, only be directed against one of the parts of the original registration.
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(3) The documents required for the divisional registration shall be filed. Furthermore, a fee as prescribed in the schedule of fees shall be paid for the division. If the documents are not filed within three months of receipt of the declaration of division, or the fee has not been paid within this period, the divisional registration shall be deemed to have been renounced. The declaration of division cannot be revoked.
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Period of Protection and Renewal
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(2) The period of protection may be renewed for further periods of 10 years.
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(3) The period of protection shall be renewed through payment of the renewal fee and, where renewal is requested for goods and services falling within more than three classes of the classification of goods and services, for each additional class, a class fee as prescribed by the schedule of fees. The fees shall become due on the last day of the period of protection. Payment may be made within a period of one year before the fees fall due. If the fees are not paid in due time, the proprietor of the registered trade mark shall be informed by the Patent Office that the registration shall be canceled, unless the fees and a surcharge as prescribed in the schedule of fees are paid within a period of six months after the expiry of the month in which the notification was served.
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(4) Where the fees are paid only in respect of some of the goods or services for which the trade mark is registered, the period of protection shall be renewed for those goods or services only. If, within the period specified in subsection (3), sentence 4, the renewal fee and the surcharge, but not the required class fees, are paid, the period of protection shall, unless sentence 1 applies, be renewed only for those classes of the classification of goods and services which are covered by the payment of fees. Where there is a leading class, it shall be taken into account first. The other classes shall be taken into account according to the sequence of the classification.
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(5) The renewal of the period of protection shall take effect as from the day following the date of expiry of the period of protection. The renewal shall be recorded in the Register and published.
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(6) If the period of protection is not renewed, the registration of the trade mark shall be canceled with effect as from the date of expiry of the period of protection.
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| Chapter 3
Surrender, Revocation and Nullity; Cancellation Procedure |
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48.—(1) The registration of the trade mark shall be canceled in the Register at any time upon request of the proprietor in respect of some or all of the goods or services for which it is registered.
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(2) The registration shall be canceled only with the agreement of the proprietor of a right to the trade mark entered in the Register.
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49.—(1) The registration of a trade mark shall be canceled upon request on grounds of revocation if, within a continuous period of five years after the date of registration, the trade mark has not been put to use in accordance with Section 26. However, no person may claim that the proprietor’s rights in a trade mark should be revoked where, during the interval between the expiry of the five-year period and the filing of the cancellation request, use of the trade mark in accordance with Section 26 has been started or resumed. The commencement or resumption of use within three months preceding the filing of the cancellation request, subsequent to the expiry of a continuous period of five years of non-use shall, however, be disregarded where preparations for the commencement or resumption occur only after the proprietor of the trade mark became aware that the cancellation request may be filed. If the cancellation request is filed with the Patent Office under Section 53(1), the request filed with the Patent Office shall be decisive for the calculation of the period of three months according to sentence 3, provided that action for cancellation under Section 55(1) is lodged within three months after service of the notification under Section 53(4).
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(2) The registration of a trade mark shall also be canceled upon request on grounds of revocation
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1. if, in consequence of acts or inactivity of the proprietor, the trade mark has become the common name in the trade for the goods or services in respect of which it is registered;
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2. if, in consequence of the use made of it by the proprietor of the trade mark or with his consent in respect of the goods or services for which it is registered, the trade mark is liable to mislead the public, particularly as to the kind, nature or geographical origin of those goods or services; or
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3. if the proprietor of the trade mark no longer satisfies the conditions laid down in Section 7.
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(3) Where a ground for revocation of rights exists in respect of only some of the goods or services for which the trade mark is registered, the registration shall be canceled in respect of those goods or services only.
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Nullity Due to Absolute Grounds for Refusal
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50.—(1) Registration of a trade mark shall be canceled on request on the grounds of nullity
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1. where it has been registered in breach of Section 3;
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2. where it has been registered in breach of Section 7;
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4. where the applicant was acting in bad faith when he filed the trade mark application.
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1. the cancellation procedure is initiated within a period of two years from the date of registration;
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2. the ground for refusal still exists at the date when the decision on the cancellation is made; and
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3. the registration has obviously been recorded in breach of the stated provisions.
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(4) Where the ground for nullity exists in respect of only some of the goods or services for which the trade mark is registered, the registration shall be canceled in respect of those goods and services only.
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Nullity Due to Earlier Rights
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51.—(1) The registration of a trade mark shall be canceled by bringing an action on the grounds of nullity if it is prejudiced by a right having seniority within the meaning of Sections 9 to 13.
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(2) The registration may not be canceled on the grounds of the registration of an earlier trade mark where the proprietor of the earlier trade mark has acquiesced, for a period of five successive years, in the use of the later trade mark for the goods or services for which it is registered, while being aware of such use, unless registration of the later trade mark was applied for in bad faith. The same shall apply to the proprietor of a right to a trade mark having seniority and acquired by use within the meaning of Section 4, No. 2, to a well-known trade mark within the meaning of Section 4, No. 3, to a commercial designation within the meaning of Section 5, or to a plant variety name within the meaning of Section 13(2), No. 4. Furthermore, registration of a trade mark may not be canceled if the proprietor of a right having seniority referred to in Sections 9 to 13 has consented to the registration of the trade mark prior to the filing of the cancellation request.
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(4) The registration may not be canceled on the grounds of the registration of an earlier trade mark where the registration of the earlier trade mark could have been canceled on the date of the publication of the registration of the later trade mark
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2. because of absolute grounds for refusal under Section 50.
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(5) Where a ground for nullity exists in respect of only some of the goods or services for which the trade mark is registered, the registration shall be canceled as regards those goods and services only.
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Effects of Cancellation on Grounds of Revocation or Nullity
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52.—(1) Where the registration of a trade mark is canceled on grounds of revocation to any extent, the effects of that registration shall be deemed to have ceased to that extent as from the date of the bringing of the action for cancellation. An earlier date, on which one of the grounds for revocation occurred, may be fixed in the decision at the request of one of the parties.
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(2) Where the registration of a trade mark is canceled on grounds of nullity to any extent, the effects of that registration shall be deemed to have been void to that extent ab initio.
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(3) Subject to the provisions relating either to compensation for damage willfully or negligently caused on the part of the proprietor of the trade mark, or to unjust enrichment, the cancellation of the registration of the trade mark shall not affect
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1. any decision in infringement proceedings which has acquired the authority of a final decision and been enforced prior to the decision on the cancellation request;
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2. any contract concluded prior to the decision on the cancellation request insofar as it has been fulfilled before that decision; however, repayment, to an extent justified by the circumstances, of sums paid under the relevant contract, may be claimed on grounds of equity.
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Cancellation by the Patent Office on Grounds of Revocation
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(2) The Patent Office shall notify the proprietor of the registered trade mark of such request and invite him to inform the Patent Office whether he objects to the cancellation.
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(3) If the proprietor of the registered trade mark fails to object to the cancellation within two months after service of the notification, the registration shall be canceled.
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(4) If the proprietor of the registered trade mark objects to the cancellation, the Patent Office shall notify accordingly the person filing the request and inform him that the cancellation request must be made by bringing an action pursuant to Section 55.
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Cancellation Procedure Before the Patent Office on Absolute Grounds for Refusal
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(2) A fee as prescribed in the schedule of fees shall be paid at the same time. In the event of non-payment of the fee, the request shall be deemed not to have been filed.
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(3) Where a cancellation request has been filed or a cancellation procedure has been initiated ex officio, the Patent Office shall notify the proprietor of the registered trade mark accordingly. If he fails to object to the cancellation within two months after service of the notification, the registration shall be canceled. If he objects to the cancellation, the cancellation procedure shall be carried out.
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Cancellation Proceedings Before Regular Courts
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(2) The following persons may bring an action:
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1. any person in such cases where a cancellation request has been filed on the grounds of revocation;
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(3) If the action for cancellation has been brought by the proprietor of an earlier registered trade mark, he shall, if the defendant has filed an objection, furnish proof that the earlier registered trade mark has been put to use pursuant to Section 26 during a period of five years preceding the bringing of the action, provided the earlier trade mark has at this date been registered for not less than five years. If the period of five years of non-use ends after the bringing of the action, the plaintiff shall, if the defendant has filed an objection, furnish proof that the trade mark has been put to use pursuant to Section 26 during the period of five years preceding the end of the oral proceedings. Where the earlier trade mark has been registered for a period of not less than five years at the date of publication of the registration of the later trade mark, the plaintiff shall also, if the defendant has filed an objection, furnish proof that, at that date, the registration of the earlier trade mark could not have been canceled under Section 49(1). In the decision, only those goods or services of which use has been proved shall be considered.
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(4) Where before or after the bringing of the action the right based on the registration of the trade mark has been assigned or transferred to another person, the decision upon the merits is also effective and enforceable vis-à-vis the successor in title. With regard to the right of the successor in title to become a party to the proceedings, Sections 66 to 74 and 76 of the Code of Civil Procedure shall apply mutatis mutandis.
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| Chapter 4
General Provisions for Procedures Before the Patent Office |
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56.—(1) Trade Mark Sections and Trade Mark Divisions shall be established in the Patent Office for implementing procedures in trade mark matters.
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(2) The Trade Mark Sections shall be competent for examining trade mark applications and for taking decisions in registration procedures. The tasks of a Trade Mark Section shall be performed by a member of the Patent Office (examiner). The tasks may also be performed by an official of the higher intermediate grade of the civil service or by comparable employees. Officials of the higher intermediate grade of the civil service or comparable employees, however, shall not be authorized to order that evidence be given under oath, to administer an oath, or to put forward a request to the Patent Court under Section 95(2).
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(3) The Trade Mark Divisions are competent for those matters which do not fall within the competence of the Trade Mark Sections. The tasks of a Trade Mark Division shall be performed by at least three members of the Patent Office. The Chairman of a Trade Mark Division may handle alone all matters falling within the competence of the Trade Mark Division, with the exception of decisions on the cancellation of trade marks pursuant to Section 54, or he may delegate these matters to a member of the Trade Mark Division.
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(2) The decision on a challenge plea [Ablehnungsgesuch], insofar as the plea requires a decision, shall be made by a Trade Mark Division.
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58.—(1) The Patent Office shall be required to give opinions at the request of the courts or of the State Attorney’s offices on questions concerning trade marks applied for or registered trade marks if there are divergent opinions by a number of experts in the proceedings.
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(2) In other respects, the Patent Office shall not have power to make decisions or give opinions outside its sphere of activity as provided by the law without the permission of the Federal Ministry of Justice.
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Investigation of the Facts; Right to Be Heard
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59.—(1) The Patent Office shall investigate ex officio the facts of the case. It shall not be bound to the factual statements and the offers of proof of the parties.
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(2) Where the decision of the Patent Office is to be based upon factors which have not been communicated to the applicant or proprietor of the trade mark or to another party to the proceedings, the said party shall be given an opportunity to express their views thereon within a given period of time.
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Examination of Facts; Hearing; Minutes
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60.—(1) The Patent Office may at any time summon and hear the interested parties, may examine witnesses, experts and the parties concerned, whether under oath or not, and may institute other inquiries necessary for clarification of the matter.
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(2) Until such time as the decision concluding the procedure is made, the applicant or proprietor of a trade mark or another party concerned shall be given a hearing on request where appropriate. If the Patent Office does not consider a hearing to be appropriate, it shall reject the request. The decision whereby a request is rejected shall not be subject to interlocutory appeal.
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Decisions; Information on the Right to Appeal
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61.—(1) The decisions of the Patent Office shall contain the grounds therefor, and shall be in writing and be communicated ex officio to all interested parties, even if they have been pronounced in accordance with sentence 2. If a hearing has taken place, pronouncement may also be given at the end of the hearing. Grounds need not be given if the applicant or the proprietor of the trade mark is the only party and his request has been allowed.
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(2) The written execution shall be accompanied by a statement informing the parties concerned of the appeal which shall be permissible from the decision, of the authority where the appeal shall be filed, of the period for filing the said appeal, and the appeal fee, if any, to be paid. The period for filing the appeal shall begin to run only when the parties concerned have been so informed in writing. If they have not been informed, or incorrectly informed, the appeal may be filed only within one year from the time of the communication of the decision, except where the party concerned has been informed in writing that an appeal was not permissible; Section 91 shall apply mutatis mutandis. Sentences 1 to 4 shall apply mutatis mutandis to the legal remedy of objection under Section 64.
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Inspection of Files; Inspection of the Register
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62.—(1) The Patent Office shall permit anyone so requesting to inspect the files of trade mark applications if legitimate interest has been substantiated by prima facie evidence.
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(2) Subsequent to the registration of the trade mark, the files relating to such registered trade marks may be inspected on request.
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(3) Anyone may freely inspect the Register.
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63.—(1) When several persons are parties to the proceedings, the Patent Office may decide that the costs of the proceedings, including the expenses of the Patent Office and the costs incurred by the parties shall, to the extent that they were necessary for the appropriate defense of their claims and rights, be borne in whole or in part by one of the parties if and to the extent that this is equitable. Such determination may also be made if the objection, the trade mark application, the opposition or the cancellation request is wholly or partly withdrawn or if, either in whole or in part, the registration of the trade mark is canceled in the Register due to surrender or non-renewal of the term of protection. Insofar as no such determination concerning the costs is made, each party shall individually meet the costs he has incurred.
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(2) The Patent Office may order that the fee for opposition or for the cancellation request be wholly or partly refunded, if and to the extent that this is equitable.
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64.—(1) Objection may be raised to the decisions of the Trade Mark Sections and Trade Mark Divisions issued by officials of the higher intermediate grade of the civil service or comparable employees. The objection shall have suspensive effect.
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(2) The objection shall be filed with the Patent Office within one month after service of the decision.
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(3) If the official or employee whose decision is contested considers the objection to be well founded, he shall rectify his decision. This shall not apply if the party raising the objection is opposed by another party to the proceedings.
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(4) Decisions on the objection shall be made by a member of the Patent Office.
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Power to Issue Legal Ordinances
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65.—(1) By legal ordinance and without the consent of the Council of the Länder [Bundesrat], the Federal Ministry of Justice shall have the power
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1. to regulate the establishment and the business procedure of the Patent Office in trade mark matters;
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2. to prescribe additional requirements for the application of trade marks;
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3. to determine the classification of goods and services;
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4. to make detailed provisions concerning the execution of examination, opposition and cancellation procedures;
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5. to make provisions concerning the Register for registered trade marks and, where appropriate, separate provisions on the Register for collective marks;
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6. to regulate the information on registered trade marks to be recorded in the Register and to determine the scope of information as well as the manner of publishing information;
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7. to make provisions concerning other procedures before the Patent Office provided in this Law, in particular, the procedure concerning the division of applications and registrations, the procedure concerning the provision of information or certifications, the procedure concerning reinstatement, the procedure concerning the inspection of files, the procedure concerning the protection of international registrations of trade marks and the procedure concerning the conversion of Community trade marks;
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8. to make provisions concerning the form of filing requests and submissions regarding trade mark matters, including the communication of requests and submissions via electronic data transmission;
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9. to make provisions determining the required form of decisions, office actions or other notifications of the Patent Office relating to trade mark matters communicated to the parties concerned, including the communication via electronic data transmission, unless a specific form of communication is prescribed by law;
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10. to make provisions determining the cases and the preconditions for taking into account submissions and documents relating to trade mark matters in other languages than German;
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12. to entrust officials of the lower intermediate grade of the civil service or comparable employees with the handling of matters within the competence of the Trade Mark Sections or Trade Mark Divisions which by their nature present no particular legal difficulties, with the exception of decisions on applications, oppositions or other requests;
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13. to prescribe the collection of administrative fees in order to cover the expenses of requests addressed to the Patent Office, insofar as provision therefor has not been made by law, in particular,
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(a) to order that fees and expenses be collected for certifications, authentications, the inspection of files and the furnishing of information;
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(b) to establish rules concerning those who owe fees, the due date of payments, the obligation to pay in advance, exemptions from payment, limitation and the regulations and procedures for determining the costs;
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[Amended by Laws of July 19, 1996, June 22, 1998, and July 16, 1998]
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| Chapter 5
Proceedings Before the Patent Court |
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(2) The appeal shall be filed with the Patent Office within one month after service of the decision.
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(3) Where the decision on the objection under Section 64 has not been made within six months from the date of filing, and where, after the expiry of this time limit, the person filing the objection has filed a request for decision, the appeal from a decision of the Trade Mark Section or Trade Mark Division is directly admissible, in derogation of subsection (1), sentence 1, if the decision on the objection is not made within a period of two months from the receipt of the request. If the person raising the objection is opposed by another party to the proceedings, sentence 1 shall be applicable provided that the period of six months after the objection was raised is replaced by a period of 10 months. If the other party has also raised an objection, the other party must give his consent to the appeal under sentence 2. The written declaration of consent shall be attached to the appeal. If the other party does not also lodge an appeal within one month after service of the appeal under subsection (4), sentence 2, his objection is deemed to have been withdrawn. The remaining periods of time under sentences 1 and 2 shall be interrupted if the proceedings are suspended or if, on request of a party to the proceedings, an extension of time has been granted. The remaining periods of time under sentences 1 and 2 shall recommence to run after the suspension of the proceedings has been terminated or the extension of time granted has expired. After a decision on the objection has been issued, an appeal under sentences 1 and 2 shall no longer be admissible.
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(4) Copies of the appeal and of all written statements shall be attached for the other parties. The appeal and all written statements containing motions pertaining to the matter or the declaration of withdrawal of the appeal or of a motion shall be served ex officio upon the other parties. Other documents shall be communicated informally to the said parties, provided that ex-officio service has not been ordered.
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(6) If the authority whose decision is contested considers the appeal to be well founded, it shall rectify its decision. This shall not be applicable where the appellant is opposed by another party to the proceedings. The authority may order that the appeal fee be refunded. If the appeal is not rectified pursuant to sentence 1, it shall be remitted to the Patent Court before the expiration of one month, without comment as to its merits. In cases under sentence 2, the appeal shall be remitted to the Patent Court without delay.
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Boards of Appeal; Public Oral Proceedings
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(2) Proceedings concerning appeals from decisions by the Trade Mark Sections and Trade Mark Divisions, including the pronouncement of the decisions, shall be public if the registration has been published.
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(3) Sections 172 to 175 of the Judiciary Law [Gerichtsverfassungsgesetz] shall be applicable, mutatis mutandis, provided that
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1. on the request of one of the parties, the public may also be excluded from the proceedings if publicity threatens to endanger the interests worthy of protection of the party making the request;
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2. the public shall be excluded from the pronouncement of the decisions until the publication of the registration.
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Intervention of the President of the Patent Office in Appeal Proceedings
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68.—(1) The President of the Patent Office may, if he considers it appropriate in order to safeguard the public interest, make written statements in appeal proceedings before the Patent Court, be present at hearings and make representations there. Written statements by the President of the Patent Office shall be communicated to the interested parties by the Patent Court.
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(2) The Patent Court may, if it considers it appropriate on a legal question of basic importance, give the President of the Patent Office the opportunity to intervene in appeal proceedings. The President of the Patent Office shall become an interested party to the proceedings upon receipt of the notice of intervention.
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69. A hearing shall take place if
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1. one of the parties so requests;
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3. the Patent Court considers it appropriate.
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Decision in Respect of Appeals
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70.—(1) A decision shall be given on the appeal.
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(2) The decision dismissing the appeal as inadmissible may be given without a hearing.
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(3) The Patent Court may reverse the contested decision without deciding the case on its merits if
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1. the Patent Office has not yet decided the case on its merits;
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2. the proceedings before the Patent Office suffer from a substantial defect; or if
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3. new facts or evidence have become known which are essential for the decision.
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(4) The Patent Office must base its decision on the legal judgment on which the reversal pursuant to subsection (3) is based.
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Costs of Appeal Proceedings
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71.—(1) When several persons are parties to the proceedings, the Patent Court may decide that the costs of the proceedings, including the costs incurred by the parties shall, to the extent that they can be reasonably considered to have been necessary for the appropriate defense of their interests and rights, be borne in whole or in part by one of the parties if and to the extent that this is equitable. Insofar as no such decision concerning the costs is made, each party to the proceedings shall meet the costs he has incurred.
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(2) Costs may be imposed on the President of the Patent Office only if he has made petitions after his intervention in the proceedings.
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(5) In other respects, the provisions of the Code of Civil Procedure relating to the procedure for the assessment of costs and execution of the decisions regarding the assessment of costs shall apply mutatis mutandis.
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(2) Persons having participated in the previous proceedings before the Patent Office shall also be excluded from judicial office.
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(3) The decision on the challenge of a judge shall be rendered by the Board to which the person who is challenged belongs. If, as a result of the elimination of the member who has been challenged, the Board is unable to make a decision, another Board of Appeal shall render the decision.
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(4) The decision on the challenge of a registrar shall be rendered by the Board to whose jurisdiction the matter belongs.
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Investigation of Facts; Preparation of the Hearing
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73.—(1) The Patent Court shall investigate ex officio the facts of the case. It shall not be bound by the factual statements and the offers of proof of the parties.
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(2) The presiding judge or a member of the Board appointed by him shall, before the hearing or, in the absence of a hearing, before the decision of the Patent Court, make all necessary arrangements for finally disposing of the matter, if possible in one hearing or in one session. In other respects, Section 273(2), (3), sentence 1, and (4), sentence 1, of the Code of Civil Procedure shall be applicable mutatis mutandis.
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74.—(1) The Patent Court shall take evidence at the hearing. In particular, it may make inspections in situ, examine witnesses, experts and the parties, and order the consultation of documents.
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(2) In appropriate cases, the Patent Court may, prior to the hearing, have evidence taken by one of its members as commissioned judge or, specifying particular questions of evidence, request another court to take such evidence.
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(3) The parties shall be notified of all hearings in which evidence is taken and may attend such hearings. They may put relevant questions to witnesses and experts. If a question is objected to, the Patent Court shall decide.
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75.—(1) As soon as the date of the hearing is fixed, the parties shall be summoned with at least two weeks’ notice. In urgent cases, the presiding judge may shorten this period.
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(2) It shall be pointed out in the summons that if a party fails to appear, the case may be heard and decided in his absence.
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76.—(1) The presiding judge shall open and conduct the hearing.
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(2) After the case is called, the presiding judge or recording judge shall report on the essential contents of the files.
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(3) Thereupon, the parties shall be given leave to speak in order to make and substantiate their motions.
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(4) The presiding judge shall discuss with the parties the questions of fact and of law involved in the case.
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(5) The presiding judge shall, upon request, permit each member of the Board to ask questions. If a question is objected to, the Board shall decide.
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(6) After discussing the case, the presiding judge shall declare the hearing closed. The Board may decide to reopen the hearing.
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77.—(1) At the hearing, and whenever evidence is taken, a registrar of the court shall be called in to act as minute-writer. If, by order of the presiding judge, no minute-writer is called in, one of the judges shall record the minutes.
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Consideration of Evidence; Right to Be Heard Before the Court
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78.—(1) The Patent Court shall decide the case on the basis of its own conclusions freely reached in the light of the results of the proceedings as a whole. The decision must state the grounds which led the judges to form their conclusions.
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(2) The decision may be based only on facts and the results of evidence on which the parties have had an opportunity to state their views.
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(3) Where there has been a previous hearing, a judge not present at the last session of the hearing may participate in rendering the decision only if the parties consent.
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Pronouncement; Service of the Decisions; Statement of Grounds
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79.—(1) Final decisions of the Patent Court shall, if a hearing has taken place, be rendered at the court session at which the hearing was concluded or at a session to be fixed forthwith. This deadline shall not be more than three weeks later except when important reasons, in particular the volume and the difficulty of the case, so require. Final decisions may be served upon the parties instead of being pronounced in court. If the Patent Court makes its decision without a hearing, pronouncement of the decision shall be replaced by service thereof upon the parties. Final decisions shall be served ex officio to the parties.
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(2) Decisions of the Patent Court by which a motion is refused or a legal remedy is decided upon must state the grounds upon which the decision is based.
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80.—(1) Typing errors, errors in calculation and similar obvious mistakes in the decision may at any time be corrected by the Patent Court.
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(2) If the statement of facts as set out in the decision contains other mistakes or obscurities, correction may be requested within two weeks after service of the decision.
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(5) The decision concerning the correction shall be recorded on the decision itself and the copies thereof.
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Representation; Power of Attorney
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81.—(1) Any party may, at any stage of the proceedings, be represented before the Patent Court by an authorized representative. A decision may be made ordering the appointment of a representative. The provisions of Section 96 shall not be affected.
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(2) The power of attorney shall be filed in writing at the Court with the documents of the case. It may be filed later; for this purpose, the Patent Court may fix a time limit.
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(3) The lack of power of attorney may be raised at any stage of the proceedings. The Patent Court shall ex officio consider the lack of a power of attorney if an attorney-at-law or patent attorney does not appear as the representative.
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Application of Further Provisions; Appeals from Decisions; Inspection of Files
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82.—(1) In the absence of provisions in this Law concerning proceedings before the Patent Court, the Judiciary Law and the Code of Civil Procedure shall apply mutatis mutandis unless the special nature of the proceedings before the Patent Court does not so permit. Section 227(3), sentence 1, of the Code of Civil Procedure shall not apply. In proceedings before the Patent Court, the Law on Court Costs [Gerichtskostengesetz] shall apply mutatis mutandis with respect to the expenses.
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(2) Appeals from the decisions of the Patent Court shall lie only to the extent permitted under this Law.
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[Amended by Law of October 28, 1996]
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| Chapter 6
Proceedings Before the Federal Court of Justice [Bundesgerichtshof] |
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Leave to Appeal on Points of Law
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(2) The appeal on a point of law shall be permitted if
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1. a question of law of basic significance is to be decided; or
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2. the further development of the law or the assurance of uniform judicial practice requires a decision by the Federal Court of Justice.
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(3) Leave to appeal on a point of law shall not be required if one of the following procedural defects is denounced:
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1. that the court which rendered the decision was not properly constituted;
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2. that a judge having participated in rendering the decision was excluded by law from the exercise of judicial office or, because of the possibility of partiality, had been successfully challenged;
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3. that one of the parties was denied the right to be heard in court;
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4. that a party to the proceedings was not represented according to the provisions of the law, unless he expressly or tacitly agreed with the conduct of the proceedings;
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5. that the decision was made on the basis of a hearing in which the provisions on the publicity of proceedings were violated; or
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6. that the decision does not state the grounds therefor.
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Right to Appeal; Basis for an Appeal
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84.—(1) The right to appeal on a point of law shall belong to the parties to the proceedings on appeal.
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(2) The only basis for an appeal on a point of law shall be the argument that the decision is founded on a breach of the law. Sections 550 and 551, Nos. 1 to 3 and 5 to 7, of the Code of Civil Procedure shall apply mutatis mutandis.
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85.—(1) The appeal on a point of law shall be filed in writing with the Federal Court of Justice within one month after service of the decision.
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(3) The appeal on a point of law shall state the grounds on which it is based. The period allowed for stating the grounds shall be one month; it shall commence with the filing of the appeal on a point of law and may, upon request, be extended by the presiding judge.
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(4) The statement of the grounds for the appeal on a point of law must contain
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1. the declaration as to the extent to which the decision is contested and the modification or reversal thereof is requested;
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2. the indication of the violated rule of law; and
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3. where the basis for the appeal on a point of law is the argument that the law was violated in respect of procedure, a statement of the facts constituting the defect.
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[Amended by Law of July 16, 1998]
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Examination of Admissibility
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86. The Federal Court of Justice shall examine ex officio whether the appeal on a point of law is in itself admissible and whether it has been filed and the grounds therefor have been stated in the form provided by law and within the prescribed time limit. If any of these requirements is lacking, the appeal on a point of law shall be dismissed as inadmissible.
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87.—(1) When several persons are parties to the proceedings in respect of an appeal on a point of law, the appeal and the statement of the grounds therefor shall be served upon the other parties, with the request to file declarations, if any, in writing with the Federal Court of Justice within a given period after service. The date on which the appeal was filed shall be communicated with the service of the appeal on a point of law. The appellant shall file the required number of certified copies together with the appeal or the statement of the grounds for the appeal.
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Application of Other Provisions
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88.—(1) In proceedings in respect of the appeal on a point of law, the provisions of the Code of Civil Procedure regarding exclusion and challenge of members of the court, authorized representatives and legal assistants, ex-officio service of documents, summonses, sessions and time limits, and reinstatement, shall apply mutatis mutandis. In the case of reinstatement, Section 91(8) shall apply mutatis mutandis.
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Decision on Appeals on a Point of Law
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89.—(1) The appeal on a point of law shall be the subject of a decision. Such decision may be rendered without a hearing.
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(2) The Federal Court of Justice shall be bound, when rendering its decision, by the facts established in the decision appealed from, except when admissible and substantiated grounds for an appeal on a point of law are put forward in relation to such facts.
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(3) The decision must state the grounds on which it is based and shall be served ex officio upon the interested parties.
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(4) In the event of a reversal of the decision appealed against, the case shall be referred back to the Patent Court for a further hearing and decision. The Patent Court shall be bound to base its decision on the legal opinion on which the reversal is based.
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90.—(1) When several persons are parties to the proceedings, the Federal Court of Justice may decide that the costs of the proceedings including the costs incurred by the parties shall, to the extent that they were necessary for the appropriate defense of their claims and rights, be borne in whole or in part by one of the parties if and to the extent that this is equitable. Such determination may also be made if the appeal on a point of law, the trade mark application, the opposition or the cancellation request is wholly or partly withdrawn by the party or if, either in whole or in part, the registration of the trade mark is canceled in the Register due to surrender or non-renewal of the term of protection. Insofar as no such determination concerning the costs is made, each party shall individually meet the costs he has incurred.
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(2) If the appeal on a point of law is rejected or dismissed as inadmissible, the costs arising from the appeal shall be awarded against the appellant. Costs arising from gross negligence of one of the parties shall be awarded against that party.
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(3) Costs can only be imposed on the President of the Patent Office if he lodged the appeal on a point of law or made petitions in the proceedings.
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(4) In other respects, the provisions of the Code of Civil Procedure relating to the procedure for the assessment of costs and execution of decisions regarding the assessment of costs shall apply mutatis mutandis.
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| Chapter 7
Common Provisions |
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91.—(1) Any person who, through no fault of his own, has been prevented from observing a time limit before the Patent Office or the Patent Court, default of which is detrimental to his rights according to the provisions of the law, shall, on request, be reinstated. This provision shall not apply to the time limits for filing an opposition and paying the opposition fee.
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(2) Reinstatement must be requested within two months after the removal of the impediment.
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(3) The request must state the facts upon which the reinstatement may be based. These facts must be established by prima facie evidence at the time of filing the request or in the procedure relating thereto.
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(4) The omitted act must be completed within the time limit for the request. If this is done, reinstatement may be granted without a request.
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(5) After one year from the expiration of the time limit which has not been observed, reinstatement may no longer be requested and the omitted act may no longer be completed.
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(6) A decision on the request shall be made by the authority which shall decide on the action to be made good.
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(7) The decision on reinstatement shall not be appealable.
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(8) If the proprietor of a trade mark is granted reinstatement and if, in the course of the period between the loss of rights to the trade mark registration and the reinstatement, third parties have placed goods on the market or rendered services in good faith with a sign identical with or similar to the trade mark, the proprietor of the trade mark shall not be entitled to assert any rights with regard to the said acts.
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92. In proceedings before the Patent Office, the Patent Court and the Federal Court of Justice the parties must make their statements on questions of fact fully and truthfully.
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Official Language and Language in Court
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93. The language of the Patent Office and the Patent Court shall be German. In other respects, the provisions of the Judiciary Law concerning the language of the court shall be applicable.
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94.—(1) For the purpose of the service of documents in proceedings before the Patent Office and the Patent Court, the provisions of the Law on Service in Administrative Procedures [Verwaltungszustellungsgesetz] shall apply subject to the following conditions:
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3. documents may also be served upon addressees for whom a mail box has been installed at the Patent Office or at the Patent Court, by depositing the said documents in the mail box of the addressee. A written statement relating to the deposit shall be added to the files of the case. The time of the deposit shall be recorded on the document. Service shall be deemed to have been effected on the third day after deposit in the mail box.
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95.—(1) The courts shall be required to furnish legal assistance to the Patent Office.
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(2) In proceedings before the Patent Office, the Patent Court shall, at the request of the Patent Office, impose subpoenas and coercive measures [Ordnungs- oder Zwangsmittel] against witnesses and experts who fail to appear or who refuse to give evidence or to give it under oath. Enforcement of the summons served on a witness who has failed to appear shall likewise be ordered.
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96.—(1) The proprietor of a filed or registered trade mark having neither a domicile nor a seat nor an establishment in this country may take part in proceedings before the Patent Office or the Patent Court regulated by this Law only if he has appointed a patent attorney or an attorney-at-law in this country as his representative.
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(2) The provisions of this Law shall apply to collective marks unless otherwise provided for in this part of the Law.
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98. Filed or registered collective marks may only be owned by associations having legal capacity including umbrella and head organizations having legal capacity and whose members are themselves associations. Legal persons governed by public law have the same status as these associations.
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Registrability of Indications of Geographical Origin as Collective Marks
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Restrictions on Protection; Use
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(2) Use of a collective mark by at least one person who has authority to do so or by the proprietor of the collective mark shall be deemed to constitute use within the meaning of Section 26.
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101.—(1) Unless otherwise provided in the regulations governing use of the collective mark, persons who have authority to use the collective mark may bring an action for infringement of a collective mark only with the consent of the proprietor.
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(2) The proprietor of a collective mark shall also be entitled to claim compensation for the damage sustained by persons who have authority to use the mark in consequence of unauthorized use of the collective mark or a similar sign.
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Regulations Governing Use of the Mark
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102.—(1) The application for a collective mark must be accompanied by regulations governing use of the mark.
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(2) The regulations governing use of the mark shall at least specify
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1. the name and the seat of the association;
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2. the purpose and representation of the association;
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3. the conditions of membership;
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4. information on the group of persons having authority to use the collective mark;
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5. the conditions of use of the collective mark;
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6. the rights and obligations of the parties concerned in the event of infringement of the collective mark.
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(3) If the collective mark consists of an indication of geographical origin, the regulations governing use of the mark must provide that any person whose goods or services originate in the geographical area concerned and fulfill the conditions for use set out in the said regulations shall be authorized to become a member of the association and shall be admitted to the group of persons who have authority to use the mark.
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(4) Anyone may inspect the regulations concerning use of the mark.
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Examination of the Application
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Amendments of the Regulations Governing Use of the Mark
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104.—(1) The proprietor of the collective mark must communicate to the Patent Office any amendment to the regulations governing use of the mark.
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1. if the proprietor of the collective mark no longer exists;
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2. if the proprietor of the collective mark does not take reasonable steps to prevent the collective mark being wrongfully used in a manner incompatible with the purpose of the association or the regulations governing use of the mark; or
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Nullity Because of Absolute Grounds for Refusal
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| PART 5
PROTECTION OF MARKS UNDER THE MADRID AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION OF MARKS AND THE PROTOCOL RELATING TO THE MADRID AGREEMENT; COMMUNITY TRADE MARKS |
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[Amended by Law of July 19, 1996]
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| Chapter 1
Protection of Marks Under the Madrid Agreement |
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Application of the Provisions of this Law
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107. The provisions of this Law shall be applicable mutatis mutandis to international registrations of marks under the Madrid Agreement Concerning the International Registration of Marks (Madrid Agreement) which are effected through the intermediary of the Patent Office or the protection of which extends to the territory of the Federal Republic of Germany unless otherwise provided in this Chapter or in the Madrid Agreement.
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Application for International Registration
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108.—(1) The application for international registration under Article 3 of the Madrid Agreement of a registered mark shall be filed with the Patent Office.
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(2) If the application for international registration is filed prior to the registration of the mark, the application shall be deemed to have been received on the date of the registration of the mark.
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(3) The application for international registration shall be accompanied by a translation of the list of goods and services in the language prescribed for international registration. The list shall be arranged in the order of the classes of the International Classification of Goods and Services.
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109.—(1) The application for international registration shall be accompanied by a national fee as specified in the schedule of fees. If the application for international registration is filed prior to the registration of the mark, the fee shall become due on the date of registration. If the fee is not paid, the application shall be deemed not to have been filed.
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(2) The international fees payable under Article 8(2) of the Madrid Agreement shall be paid directly to the International Bureau of the World Intellectual Property Organization.
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110. The date and number of the international registration of a mark registered shall be entered in the Register.
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Subsequent Territorial Extension
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111.—(1) If a request for subsequent territorial extension of the international registration of a mark is filed under Article 3ter(2) of the Madrid Agreement with the Patent Office, such request shall be accompanied by a national fee as specified in the schedule of fees. If the fee is not paid, the request shall be deemed not to have been filed.
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Effect of International Registration
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112.—(1) The international registration of a mark the protection of which has been extended to the territory of the Federal Republic of Germany under Article 3ter of the Madrid Agreement shall have the same effect as if an application for the recordal of the mark in the Register kept by the Patent Office had been filed and the mark had been registered on the date of international registration under Article 3(4) of the Madrid Agreement or on the date of recordal of the subsequent territorial extension under Article 3ter(2) of the Madrid Agreement.
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Examination as to Absolute Grounds for Refusal
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Revocation of Protection a posteriori
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Opposition and Request for Cancellation on the Basis of International Registrations
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Exclusion of Claims for Non-Use
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Consent to the Transfer of an International Registration
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118. The Patent Office shall give the International Bureau of the World Intellectual Property Organization the consent required under Article 9bis(1) of the Madrid Agreement in the event of the transfer of an international registration irrespective of whether the mark is recorded in the Register kept by the Patent Office for the new proprietor of the international registration.
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| Chapter 2
Protection of Marks Under the Protocol Relating to the Madrid Agreement |
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Application of the Provisions of this Law
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119. The provisions of this Law shall apply mutatis mutandis to international registration of marks under the Madrid Protocol of June 27, 1989, Relating to the Madrid Agreement Concernings the International Registration of Marks (Protocol Relating to the Madrid Agreement) which are effected through the intermediary of the Patent Office or the protection of which extends to the territory of the Federal Republic of Germany unless otherwise provided in this Chapter or in the Protocol Relating to the Madrid Agreement.
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Application for International Registration
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120.—(1) The application, under Article 3 of the Protocol Relating to the Madrid Agreement, for international registration of a mark in respect of which an application for registration has been filed, or of a registered mark, shall be filed with the Patent Office. The application may be filed prior to the registration of the mark if the international registration is to be effected on the basis of a registered mark.
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(2) If the international registration is to be effected on the basis of a registered mark and if the application for international registration is filed prior to the registration of the mark, the application for international registration shall be deemed to have been received on the date of registration of the mark.
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121.—(1) The application for international registration shall be accompanied by a national fee as specified in the schedule of fees.
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(2) If the international registration is to be effected on the basis of a registered mark under the Madrid Agreement as well as according to the Protocol Relating to the Madrid Agreement, a joint national fee as specified in the schedule of fees shall be paid for the application for international registration.
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(4) The international fees payable under Article 8(2) or Article 8(7) of the Protocol Relating to the Madrid Agreement shall be paid directly to the International Bureau of the World Intellectual Property Organization.
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Entry in the Files; Recordal in the Register
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122.—(1) If the international registration has been effected on the basis of an application for registration, the date and number of the international registration shall be entered in the file of the mark applied for.
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(2) The date and number of the international registration effected on the basis of a registered mark shall be recorded in the Register. Sentence 1 shall also apply if the international registration has been effected on the basis of an application for registration and if the application has led to registration.
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Subsequent Territorial Extension
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123.—(1) The request for subsequent territorial extension of the protection resulting from the international registration of a mark under Article 3ter(2) of the Protocol Relating to the Madrid Agreement shall be filed with the Patent Office. If the subsequent extension is to be effected on the basis of a registered mark and if the request has been filed prior to the registration of the mark, it shall be deemed to have been received on the date of registration.
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(2) The request for subsequent territorial extension shall be accompanied by a national fee as specified in the schedule of fees. If the subsequent territorial extension on the basis of a registered mark is to be effected on the basis of the Madrid Agreement as well as on the basis of the Protocol Relating to the Madrid Agreement, the request for subsequent territorial extension shall be accompanied by a joint national fee as specified in the schedule of fees. If the fee under sentence 1 or sentence 2 is not paid, the application shall be deemed not to have been filed.
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Analogous Application of the Provisions Concerning the Effect of International Registrations of Marks Under the Madrid Agreement
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Transformation of an International Registration
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125.—(1) Where an application under Article 9quinquies of the Protocol Relating to the Madrid Agreement for transformation of a mark canceled under Article 6(4) of the Protocol Relating to the Madrid Agreement is filed with and is received by the Patent Office with the necessary particulars prior to the expiry of a period of three months after the date of cancellation of the mark in the International Register, the date of the international registration of this mark under Article 3(4) of the Protocol Relating to the Madrid Agreement or the date of recordal of the territorial extension of protection under Article 3ter(2) of the Protocol Relating to the Madrid Agreement with the priority claimed for the international registration, if any, shall be decisive for the determination of seniority within the meaning of Section 6(2).
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(2) The request for transformation shall be accompanied by a fee as specified in the schedule of fees. Where transformation is requested in respect of goods or services coming under more than three classes of the Classification of Goods and Services, a class fee as specified in the schedule of fees shall be payable for each further class. If the fees are not paid, Section 36(3) shall apply mutatis mutandis.
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(3) The party filing the request shall present a certificate from the International Bureau of the World Intellectual Property Organization showing the mark and the goods or services in respect of which the protection of the international registration had effect in the Federal Republic of Germany prior to its cancellation in the International Register.
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(4) In addition thereto, the party filing the request shall file a translation of the list of the goods or services in respect of which registration is sought.
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(5) In all other respects, the request for transformation shall be treated as an application for the registration of a mark. Where, however, on the date of cancellation of the mark in the International Register, the period for refusal of protection under Article 5(2) of the Protocol Relating to the Madrid Agreement had already expired and no proceedings in respect of the refusal of protection or subsequent revocation of protection were pending on the said date, the mark shall be directly registered under Section 41 without previous examination. No opposition shall be admissible against registration of a mark under sentence 2.
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| Chapter 3
Community Trade Marks |
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[Chapter 3 added by Law of July 19, 1996]
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Filing of Applications for Community Trade Marks with the Patent Office
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125a. If applications for Community trade marks are filed with the Patent Office under Article 25(1)(b) of Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community Trade Mark (Official Journal of the European Communities (OJEC) No. L 11, p. 1), the Patent Office shall mark the application with the date of its receipt and transmit it immediately and without examination to the Office for Harmonization in the Internal Market (trade marks and designs).
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Application of the Provisions of this Law
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125b. The provisions of this Law shall apply to trade marks filed or registered under the Community Trade Mark Regulation in the following cases:
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6. Requests for seizure on import or export may be filed by the proprietors of registered Community trade marks in the same way as by the proprietors of trade marks registered under this Law. Sections 146 to 149 shall apply mutatis mutandis.
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Later Invalidation of a Trade Mark
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(3) The invalidation procedure shall be governed by the provisions applicable to the procedure for cancellation of a registered trade mark with the proviso that the establishment of invalidity of a trade mark shall be substituted for the cancellation of its registration.
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Conversion of Community Trade Marks
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125d.—(1) If a request for conversion of a filed or registered Community trade mark has been transmitted to the Patent Office under Article 109(3) of the Community Trade Mark Regulation, the applicant shall pay a fee as specified in the schedule of fees within a period of two months from the receipt of the request for conversion by the Patent Office. Where conversion is requested in respect of goods or services coming under more than three classes of the classification of goods and services, a class fee as specified in the schedule of fees shall also be payable for each further class. If the fee is not paid in time, the request for conversion shall be deemed not to have been filed.
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(2) The Patent Office shall examine whether the request for conversion is admissible under Article 108(2) of the Community Trade Mark Regulation. If the request for conversion is inadmissible, it shall be refused.
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(5) In other respects, the provisions of this Law concerning the application for trade marks shall apply to requests for conversion.
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Community Trade Mark Courts Community Trade Mark Litigation
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125e.—(1) For all actions for which the Community trade mark courts have jurisdiction within the meaning of Article 91(1) of the Community Trade Mark Regulation (Community trade mark litigation), the Provincial Courts [Landgerichte] shall have exclusive jurisdiction as Community trade mark courts of first instance without regard to the value in dispute.
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(2) The Community trade mark court of second instance shall be the Higher Provincial Court [Oberlandesgericht] within whose jurisdiction the Community trade mark court of first instance is located.
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(3) The governments of the Länder shall have the power to allot by statutory ordinance Community trade mark litigation for the areas of several Community trade mark courts to one such court. The governments of the Länder may transfer such power by statutory ordinance to the Ministries of Justice of the Länder.
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(4) The Länder may transfer by agreement, in whole or in part, the functions incumbent upon the Community trade mark courts of one Land to the competent Community trade mark court of another Land.
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125f. The Federal Ministry of Justice shall notify the Commission of the European Communities of the Community trade mark courts of first and second instance and of any change in the number, names or territorial jurisdiction of the Community trade mark courts of first and second instance.
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Territorial Jurisdiction of the Community Trade Mark Courts
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125g. Where German Community trade mark courts have international jurisdiction under Article 93 of the Community Trade Mark Regulation, such provisions concerning territorial jurisdiction shall apply mutatis mutandis as would be applicable to trade mark applications filed with the Patent Office or to trade marks recorded in the Register of the Patent Office. Where jurisdiction cannot be established under the above provisions, the court having territorial jurisdiction shall be the court where the plaintiff has his domicile.
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125h.—(1) Where it is known to the insolvency court that a filed or registered Community trade mark is among the insolvency assets, it shall directly request the Office for Harmonization in the Internal Market (Trade Marks and Designs) to record in the Community Trade Mark Register or, in the case of an application, in the files of the application
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1. the opening of proceedings and, if not already contained therein, a restraint on disposal;
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2. the release or realization of the Community trade mark or of the Community trade mark application;
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3. the dismissal of proceedings; and
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4. the annulment of proceedings, but in the case of control of the debtor, only after the control has been completed, and of any restraint on disposal.
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(2) Recordal in the Community Trade Mark Register or in the files of the application may also be requested by the receiver. In the case of self-administration (Section 270 of the Insolvency Code), the administrator shall act in place of the receiver.
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| PART 6
INDICATIONS OF GEOGRAPHICAL ORIGIN |
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| Chapter 1
Protection of Indications of Geographical Origin |
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Names, Indications or Signs Protected as Indications of Geographical Origin
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126.—(1) For the purposes of this Law, indications of geographical origin shall be names of places, areas, regions or countries as well as other indications or signs used in the course of trade to identify the geographical origin of goods or services.
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127.—(1) Indications of geographical origin may not be used in the course of trade for goods or services which do not originate in the place, area, region or country designated by the indication of geographical origin if the use of such names, indications or signs for goods or services of a different origin entails the risk of misleading as to the geographical origin of the goods and services.
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(2) If the goods or services marked by an indication of geographical origin show special properties or a special quality, the use of such indication of geographical origin in the course of trade for the respective goods or services of the said origin shall only be permitted if the goods or services have those properties or that quality.
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(3) If an indication of geographical origin enjoys a special reputation, the use of such indication of geographical origin in the course of trade for goods or services of a different origin shall not be permitted even in the absence of a risk of misleading as to the geographical origin if the use for goods or services of a different origin is likely to take unwarranted and unfair advantage of, or be detrimental to, the reputation or the distinctive character of the indication of geographical origin.
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(4) The above subsections shall also apply where names, indications or signs similar to the protected indication of geographical origin are used or where the indication of geographical origin is used with additions, provided that,
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Injunctive Relief; Claim for Damages
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(3) If the infringing act is committed in a business establishment by an employee or by an authorized person, the injunctive relief and, insofar as the employee or authorized person acted willfully or by negligence, the claim for damages may also be asserted against the owner of the business establishment.
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| Chapter 2
Protection of Geographical Indications and Designations of Origin Under Regulation (EEC) No. 2081/92 |
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Application for Registration of a Geographical Indication or Designation of Origin
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130.—(1) Applications for registration of a geographical indication or of a designation of origin in the Register of protected designations of origin and protected geographical indications kept by the Commission of the European Communities under Council Regulation (EEC) No. 2081/92 of July 14, 1992, on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs (OJEC), No. L 208, p. 1) in its applicable version shall be filed with the Patent Office.
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(2) The application shall be accompanied by a fee as specified in the schedule of fees. If the fee is not paid, the application shall be deemed not to have been filed.
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(3) If the examination of the application shows that the geographical indication or designation of origin filed for registration complies with the requirements specified in Regulation (EEC) No. 2081/92 and its implementing provisions, the Patent Office shall inform the applicant accordingly and transmit the application to the Federal Ministry of Justice.
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(4) The Federal Ministry of Justice shall transmit the application with the required documents to the Commission of the European Communities.
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(5) If the examination shows that the requirements for the registration of the filed geographical indication or designation of origin are not complied with, the application shall be rejected.
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Request to Amend the Specification
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132.—(1) Objections under Article 7(3) of Regulation (EEC) No. 2081/92 to the registration of geographical indications and designations of origin in the Register of protected designations of origin and protected geographical indications kept by the Commission of the European Communities, or to amendments of the specification of a geographical indication or designation of origin, shall be filed with the Patent Office.
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(2) A fee as specified in the schedule of fees shall be paid for the objection. If the fee is not paid in time, the objection shall be deemed not to have been raised.
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Responsibilities in the Patent Office; Appeals
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(2) An appeal to the Federal Patent Court and an appeal on a point of law to the Federal Court of Justice shall lie from decisions taken by the Patent Office pursuant to the provisions specified in this Chapter. The provisions in Part 3 of this Law concerning appeal proceedings before the Patent Court and proceedings on appeals on a point of law before the Federal Court of Justice shall apply mutatis mutandis.
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134.—(1) The supervision and inspection required under Regulation (EEC) No. 2081/92 and the provisions implementing the Regulation shall be incumbent upon the authorities responsible under Land law.
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1. enter and inspect business premises and real properties, sales outlets and means of transport;
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2. take samples against receipt; upon request of the party concerned, a part of the sample or, if the sample is indivisible, a second sample shall be left with him under official seal;
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3. inspect and examine business records;
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during business or working hours. Such rights also extend to agricultural products or foodstuffs which are marketed in public areas, in particular markets, squares, streets or by peddling.
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(3) Owners or managers of enterprises shall be liable to permit the entering and inspection of their business premises and real properties, sales outlets and means of transport, to display or have displayed the agricultural products or foodstuffs to be inspected in a way to enable the inspection in due form, to give or have given the necessary assistance during inspections, to allow the taking of samples, to submit their business records and to permit their examination as well as to supply information.
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(5) A person liable to supply information may refuse to give information in response to questions the answering of which would make him or one of the relatives specified in Section 383(1), Nos. 1 to 3, of the Code of Civil Procedure liable to prosecution or proceedings under the Law on Administrative Offenses.
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(6) For official acts to be performed under Article 10 of Regulation (EEC) No. 2081/92 for inspection purposes, cost-covering fees and expenses shall be charged. The acts liable to fees shall be specified by Land law.
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Injunctive Relief; Claim for Damages
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| Chapter 3
Authorization to Issue Legal Ordinances |
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Detailed Provisions for the Protection of Individual Indications of Geographical Origin
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137.—(1) The Federal Ministry of Justice shall have the power to lay down by legal ordinance detailed provisions concerning individual indications of geographical origin in agreement with the Federal Ministry of Economics, the Federal Ministry of Food, Agriculture and Forests and the Federal Ministry of Health, and with the consent of the Council of the Länder.
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(2) The following may be laid down by legal ordinance:
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1. the area of origin by reference to political or geographical borders;
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3. the way the indication of geographical origin is used.
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In so doing, the existing fair practices and customs in using indications of geographical origin shall be taken into account.
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Other Provisions for the Procedure Concerning Applications, Requests and Oppositions Under Regulation (EEC) No. 2081/92
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Provisions Implementing Regulation (EEC) No. 2081/92
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139.—(1) The Federal Ministry of Justice shall have the power to lay down by legal ordinance further details of the protection of designations of origin and of geographical indications under Regulation (EEC) No. 2081/92 in agreement with the Federal Ministry of Economics, the Federal Ministry of Food, Agriculture and Forests and the Federal Ministry of Health and with the consent of the Council of the Länder as far as required in consequence of Regulation (EEC) No. 2081/92 or of its implementing provisions issued by the Council or the Commission of the European Union. By legal ordinance under sentence 1 may be laid down in particular provisions concerning
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1. the marking of the agricultural products or of the foodstuffs;
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2. the right to use the protected names; or
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3. the requirements and the procedure for supervising and inspecting the transfer, import or export, within the Community.
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Ordinances under sentence 1 may also be laid down if the Member States are authorized to issue supplementary provisions under the Community law provisions mentioned here.
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(2) The governments of the Länder shall have the power to transfer by means of legal ordinance the carrying out of the inspections required under Article 10 of Regulation (EEC) No. 2081/92 to approved private inspection bodies, or to involve such bodies in carrying out these inspections. The governments of the Länder may also lay down by legal ordinance the requirements and procedure for the approval of private inspection bodies. They shall be authorized to transfer the power under sentences 1 and 2 by legal ordinance in whole or in part to other authorities.
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| PART 7
PROCEDURE IN LITIGATION CONCERNING SIGNS |
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Litigation Concerning Signs
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140.—(1) For all actions whereby a claim arising out of one of the legal relationships regulated under this Law is asserted (litigation concerning signs), the Provincial Courts shall have exclusive jurisdiction without regard to the value in dispute.
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(2) The governments of the Länder shall have the power to designate by legal ordinance for the areas of several Provincial Courts one such court to be in whole or in part the competent court for litigation concerning signs, provided that such designation serves the advancement in substance or the faster conclusion of the proceedings. The governments of the Länder may transfer those powers to the Ministries of Justice of the Länder. The Länder may moreover transfer by agreement functions incumbent upon the courts of one of the Länder in whole or in part to the competent court of another Land.
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Venue for Claims Under this Law and Under the Law Against Unfair Competition
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141. Claims concerning the legal relationships regulated under this Law and based on the provisions of the Law Against Unfair Competition shall not be required to be asserted before the forum provided for in Section 24 of the Law Against Unfair Competition.
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Reduction of the Value in Dispute
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142.—(1) If, in civil litigation whereby a claim arising out of one of the legal relationships regulated under this Law is asserted by a law suit, a party satisfies the court that the awarding of the costs of the case against him according to the full value in dispute would considerably endanger his financial position, the court may, at his request, order that the said party’s liability to pay court costs be adjusted in accordance with a portion of the value in dispute that shall be appropriate to his financial position.
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| PART 8
PROVISIONS GOVERNING OFFENSES PUNISHABLE WITH IMPRISONMENT OR FINES; SEIZURE ON IMPORT OR EXPORT |
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| Chapter 1
Provisions Governing Offenses Punishable with Imprisonment or Fines |
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Punishable Infringement of Signs
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143.—(1) Any person who, in the course of trade, unlawfully
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2. uses a sign with the intention of taking advantage of or of impairing the distinctive character or the repute of a mark which has a reputation contrary to Section 14(2), No. 3;
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shall be punished by imprisonment of up to three years or by a fine.
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(2) If the offender acts on a commercial basis, he shall be punished by imprisonment of up to five years or by a fine.
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(3) The attempt to commit such an offense shall be punishable.
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(6) In the case of conviction, the sentence shall be published if the injured party so requests and if he has a legitimate interest in so doing. The scope and nature of the publication shall be determined in the judgment.
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[Amended by Law of July 19, 1996]
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Punishable Use of Indications of Geographical Origin
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144.—(1) Any person who, in the course of trade, unlawfully uses an indication of geographical origin, a name, an indication or a sign
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shall be punished by imprisonment of up to two years or by a fine.
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(3) The attempt to commit such an offense shall be punishable.
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(4) In the case of conviction, the court shall order that the unlawful marking of the objects which are in the possession of the convicted person be removed or, if this is not possible, that the objects be destroyed.
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(5) If a sentence is awarded, its publication shall be ordered if this is necessary in the public interest. The scope and nature of the publication shall be determined in the judgment.
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[Amended by Law of July 19, 1996]
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Provisions Governing Fines
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145.—(1) An administrative offense shall be deemed to be committed by any person who, in the course of trade, uses for marking goods or services, in identical or counterfeit form,
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1. armorial bearings, flags or other emblems of a State or the armorial bearings of a locality or an association of communities or an association of other communal entities within the country within the meaning of Section 8(2), No. 6;
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(2) An administrative offense shall be deemed to be committed by any person who, willfully or negligently,
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(a) does not permit the entering or inspection of business premises and real properties, sales outlets or means of transport;
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(b) does not display the agricultural products or foodstuffs to be inspected so as to make it possible for the inspection to be carried out in due form;
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(c) fails to provide the necessary assistance in the case of inspections;
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(d) does not permit the taking of samples;
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(e) does not submit business records or does not submit them in full or does not permit their examination; or
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(f) fails to supply information or does not supply it correctly or fully; or
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| Chapter 2
Seizure of Goods on Import or Export |
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Seizure in Case of Infringement of Rights to a Sign
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146.—(1) Goods which unlawfully bear a mark or a commercial designation protected by this Law shall be subject, upon request by the holder of the rights and against his security, to seizure by the customs authorities, on import or export, in those cases where the infringement is obvious and unless Council Regulation (EC) No. 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods (OJEC No. L 341, p. 8) applies. This provision shall apply in trade with other Member States of the European Union as well as the other Contracting States of the Convention Concerning the European Economic Area only insofar as controls are carried out by the customs authorities.
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(2) Where the customs authorities order a seizure, they shall advise the person entitled to the right of disposal and the petitioner thereof without delay. The origin, quantity and place of storage of the goods, together with the name and address of the person entitled to the right of disposal, shall be communicated to the petitioner. The secrecy of correspondence and mail (Article 10 of the Basic Law [Grundgesetz]) shall be restricted to that extent. The petitioner shall be given the opportunity to inspect the goods where such inspection does not constitute a breach of commercial or trade secrecy.
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[Amended by Law of July 19, 1996]
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Confiscation; Opposition; Release of Goods Seized
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(2) If the person entitled to the right of disposal opposes seizure, the customs authorities shall inform the petitioner without delay. The petitioner shall be required to declare to the customs authorities without delay whether he maintains the request under Section 146(1) in respect of the seized goods.
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(3) If the petitioner withdraws his request, the customs authorities shall lift the seizure without delay. If the petitioner maintains his request and submits an executable court decision ordering the impounding of the seized goods or limitation of the right of disposal, the customs authorities shall take the necessary measures.
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(2) The cost of official acts related to the request shall be charged to the petitioner in accordance with Section 178 of the Fiscal Code [Abgabenordnung].
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(3) Seizure and confiscation may be opposed by the legal remedies allowed by the fixed penalty procedure under the Law on Minor Offenses [Gesetz über Ordnungswidrigkeiten] in respect of seizure and confiscation. The petitioner shall be heard in the review proceedings. An immediate appeal shall lie from the decision of the Local Court [Amtsgericht]. The immediate appeal shall be heard by the Higher Provincial Court.
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Damages in the Case of Unjustified Seizure
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Seizure Under Regulation (EC) No. 3295/94
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[Amended by Law of July 19, 1996]
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Seizure in the Case of Unlawful Marking with Indications of Geographical Origin
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151.—(1) Goods which unlawfully bear an indication of geographical origin protected by this Law or by provisions of the European Community shall be subject, on import, export or in transit, to seizure for the purpose of removing the unlawful marking where the infringement is obvious. This provision shall apply in trade with other Member States of the European Union as well as the other Contracting States of the Convention Concerning the European Economic Area only insofar as controls are carried out by the customs authorities.
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(2) The seizure shall be carried out by the customs authorities. The customs authorities shall also order the measures necessary in order to remove the unlawful marking.
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(3) If the orders of the customs authorities are not complied with or if the removal is impracticable, the customs authorities shall order confiscation of the goods.
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(4) Seizure and confiscation may be opposed by the legal remedies allowed by the fixed penalty procedure under the Law on Minor Offenses in respect of seizure and confiscation. An immediate appeal shall lie from the decision of the Local Court. The immediate appeal shall be heard by the Higher Provincial Court.
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| PART 9
TRANSITIONAL PROVISIONS |
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152. Unless otherwise provided herein below, the provisions of this Law shall also apply to trade marks in respect of which an application has been filed or which have been registered prior to January 1, 1995, or which have been acquired through use in the course of trade or through notoriety, and to commercial designations protected under the applicable provisions prior to January 1, 1995.
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Restrictions on the Assertion of Claims for Infringement
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153.—(1) Where the proprietor of a trade mark registered prior to January 1, 1995, or a trade mark or commercial designation acquired prior to this date through use or notoriety was not entitled under the provisions applicable at that time to any claims for infringement against the use of the trade mark, the commercial designation or an identical sign, the rights resulting from the trade mark or the commercial designation under this Law cannot be asserted against the continued use of the said trade mark, commercial designation or sign.
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Rights in rem; Enforcement; Proceedings in Bankruptcy
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154.—(1) Where, prior to January 1, 1995, the right conferred by the application for, or the registration of, a trade mark has become the subject of rights in rem or where the right conferred by the application or registration has been the subject of enforcement measures, the said rights or measures may be entered in the Register under Section 29(2).
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Examination of Trade Mark Applications as to Absolute Grounds for Refusal
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156.—(1) If a sign was filed prior to January 1, 1995, which under the provisions heretofore in force was excluded from registration for reasons the Patent Office had to take into account ex officio, but which is not excluded from registration pursuant to Section 3, 7, 8 or 10 of this Law, the provisions of this Law shall be applied provided that the application shall be deemed to have been filed on January 1, 1995, and that, irrespective of the original filing date and of any claimed priority, January 1, 1995, shall be decisive for the determination of the seniority for the purposes of Section 6(2).
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Publication and Registration
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(2) If opposition under Section 5(4) of the former Trade Mark Law was lodged prior to January 1, 1995, to the registration of a trade mark published under Section 5(2) of the former Trade Mark Law or registered under Section 6a(1) of the former Trade Mark Law, or if an opposition under subsection (1) is lodged after January 1, 1995, the grounds for opposition according to Section 5(4), Nos. 2 and 3, of the former Trade Mark Law shall be further applied, provided that the opposition was based thereon. If the opposition was based on Section 5(4), No. 1, of the former Trade Mark Law, the provision of Section 42(2), No. 1, shall apply instead of this provision.
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Division of an Application
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Period of Protection and Renewal
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Cancellation of a Registered Trade Mark on the Grounds of Revocation
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Cancellation of a Registered Trade Mark Because of Absolute Grounds for Refusal
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Cancellation of a Registered Trade Mark Due to Earlier Rights
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163.—(1) If an action for cancellation of the registration of a trade mark was instituted prior to January 1, 1995, on the ground of an earlier application under Section 11(1), No. 1, of the former Trade Mark Law, or on the ground of any other earlier right, the registration shall, unless otherwise provided in subsection (2), only be canceled if the action is allowed under the provisions heretofore in force as well as under the provisions of this Law. This shall also apply to an action instituted after January 1, 1995, under Section 55 in view of the cancellation of the registration of a trade mark recorded prior to January 1, 1995.
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Objection and Direct Appeal
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[Amended by Law of June 22, 1998]
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(This text replaces those previously published under code numbers 3-001 and 3-002.)
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