Brand PracticeIn the following, the key points of trademark practice are presented analogously. The explanations are based on the Guidelines for Trademark Questions of the IGE in Bern. For specific questions, specialized trademark attorneys should be consulted. We will be happy to clarify your concerns in cooperation with the trademark attorneys associated with us.
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Opposition proceedings Collision of registered trademarks For a period of 3 months from the date of application, a trademark owner of older trademarks may file an opposition, which will be finally decided in an opposition procedure by the Trademark Registration Institute. In this procedure, the two allegedly conflicting trademarks are examined for sufficient distinctiveness; if this is not sufficient, the 'younger' trademark is not registered. Collision of registered trademark with registered company If an 'older' company name collides with a 'younger' trademark, the trademark owner cannot prohibit the company owner from continuing to use the sign to the same extent as before (Art. 14 MschG). If, on the other hand, an unregistered name used first collides with a registered name, the registered right takes precedence. However, the person who first used the name as a trademark (to designate goods or services) may continue to use it to the same extent as before (Art. 14 MSchG). Collision of registered trademark with unregistered trademark If an unregistered trademark that is identical or confusingly similar is nevertheless used, the trademark owner may seek injunctive relief against an infringer. Possible claims include: - Cease and desist from all conflicting activities - Elimination by destruction or - at least removal of the trademark - Information about the scope of use and - payment of damages (whereby, at the request of the infringed party, a criminal prosecution will be initiated). To determine the amount of damages, one of the following three bases of calculation is applied: - payment of a reasonable license fee - Surrender of the infringer's profit - Compensation of the reduced income |
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Legende: BGE : Bundesgerichtsentscheid Kl.: Waren- und Dienstleistungsklasse BVGer: Bundesverwaltungsgericht MschG : Markenschutzgesetz IR: Internationale Registrierung |
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