When formulating a new brand, developers often modify the terms of certain significant features of a product or ingredient, with this modification resulting in a new word. It is no longer simply descriptive, as would be the case if the original word was used, and it can therefore be registered as a trade mark. Problems arise when competitors have already had the same idea! Especially if they have a prior trade mark using the same or similar content. So what can one do, in this situation, to avoid getting into trouble later on? An unpublished decision of the Oberlandesgericht München (Munich Higher Regional Court), obtained by the author, provides important guidance.
Any company can opt to use a weak mark that directly highlights the special characteristics of its products or services, though such a mark may well be denied registration, because it is considered merely descriptive of products or services. But if it does make it into the trade mark register, it cannot be denied protection altogether. So is it worth taking the chance and investing in weak brands?
You’ve bought a cheap watch on an online sales website from Turkey or China as a private consumer – but what do you do if you paid for it and you are asked to consent to the destruction of the watch without any compensation?