Copyright, trademark, registered trademark

Copyright, Trademark& registered brand – clearly defined

We often encounter the use of symbols. On top of that, we are regularly asked what these signs are all about. What do they stand for? And what exactly are the differences? For this reason, we have taken up this topic and translated the legal gobbledygook for you into German that is understandable for everyone.

You have certainly encountered them on German-language websites, in flyers or print catalogs in connection with company and product names. The typical symbols are

® (registered trademark or. registered trademark) or
™ (Trademark / unregistered brand ) or
© (Copyright) – in connection with photos, graphics, illustrations or advertising texts.

You’ve probably seen one of these signs somewhere before, e.g.B. somewhere on a website in the footer or imprint.

What is the meaning of these symbols??
When is their use permissible?
And what are the pitfalls, or is there even a risk of a warning in the case of incorrect use??

Questions that should be dealt with and clarified.

Registered trademark:® stands for Registered

The ® symbol originates from US trademark law and stands for registered trademark. It only states that the trademark used is registered in the USA. The agency responsible for this is the U.S. Patent and Trademark Office. This means: The ® symbol may only be used when the trademark has been registered in the official trademark register. A mere trademark application does not entitle the owner to use the trademark.

Under U.S. trademark law, damages can be claimed in the absence of the registration notice ®. This claim becomes final only after the trademark owner has notified the infringer of the unauthorized use of the trademark. This can be done, among other things, by submitting an excerpt from the trademark register, a warning, an action for injunctive relief or, for example, publication of a judgment. In comparison, the German trademark law does not know these requirements for the compensation of damages. In this case, the trademark owner may claim damages from the trademark infringer without the trademark infringement having been brought to his attention beforehand.

In addition, a registered trademark does not necessarily have to be marked with the ® symbol. On the contrary, it is permissible. Finally, the R in the circle serves rather as an advertising effect. It signals a formal trademark protection. Copycats and free riders are to be deterred in this way.

What is wrong with the use of® (registered trademark) to consider?

It is essential that the symbol ® always follows the complete trademark name as entered in the trademark register. Particular attention should be paid to this in the case of word/image marks. Here it is not sufficient that the ® is placed after a word element.

Incorrect use of the symbol: Examples

Incorrect use of the symbol often leads to disputes. A trademark is registered, but has not been properly used. This leads to deception with regard to the nature and scope of the trademark. This applies, for example, to advertising with the ® symbol. Indeed, the use of the symbol creates the impression that it is a powerful word mark. In fact, there is only a word-image trademark protection that is not very distinctive (cf. Grillmeister – Decision of 17.10.2014 "grill meister" , Az. I ZB 11/13 ).

Equally critical is advertising with the ® symbol in connection with goods and services not registered as a trademark. This creates the impression that a trademark exists for a specific product or service. This is again considered to be anti-competitive.

is also misleading. This is most often the case when the trademark is not protected in Austria, but in another country. However, there are different court rulings here. Therefore, a case-by-case consideration of the facts is recommended. Furthermore, this means that whether advertising marked with a ® symbol violates competition law and can be warned is a question of the individual case.

Trademark or. TM

The addition Trademark, TM for short, identifies a trademark in the USA that has not been entered in the official register.

However, these legal principles from US trademark law cannot be directly transferred to German trademark law. The Regional Court of Munich, for example, stopped the ® symbol with the judgment of 23.07.2003, Az. 1 HK O 1755/03 equal to the TM addition. Furthermore, it declared the latter to be misleading. After all, the abbreviation TM stands for a trademark, but for an unregistered one.

In contrast, the Regional Court of Essen ruled differently in its judgment of 04.06.2003 , Az. 44 O 18/03 proceeded in a similar case: There, according to the legal opinion, the TM addition symbolizes a mere registered trademark and is not considered misleading.

So as you can see, caution is advised with the addition of the "TM" symbol. It is much more advisable to register the trademark.

The Copyright © symbol – the letter C in a circle – is probably the most commonly used copyright symbol. Mostly it appears in connection with a year number. It indicates that copyrights are claimed for a work. The work can be, for example, a text, photo, piece of music, website, software, database, etc. act.

Caution: Copyright is not the same as right of use!

At this point, an important distinction must be made. The purchase of a license for an image from an image database does not entitle you to use the Copyright-Symbols next to your name. This would mean that the website operator would be adorning himself with other people’s feathers. So if you use the © without being the actual author of the work, you risk a warning.

Copyright, Trademark& use a registered trademark correctly

The use of the symbols registered trademark ®, Trademark TM and copyright © is allowed in Germany and Austria. Nevertheless, it should only be done well thought out. Because the use in the wrong place or in the wrong context can result in a warning. The use in the right place, on the other hand, can cause an additional advertising effect. After all, this is how you make your own rights additionally clear and keep away possible free riders.

You want to learn more about copyright or trademark protection? We put you in touch with the trademark experts!