Austria: New Types Of Trade Marks And Representation Formats – How To Protect Non-Conventional Marks

As one of the key changes in the new EU Trade Mark Regulation (EUTMR) and Trade Marks Directive, graphical representation is no longer necessary for filing EU trade marks or national marks. New types of trade marks are now permissible which may be filed in formats not previously allowed, provided that, using generally available technology, representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective. In short it is no longer necessary for a trade mark to be "graphically represented" but just to be "represented".

Liberalisation of the definition of a trade mark paved the way for new ways to protect non-conventional trade marks. Specifically, protection was simplified and extended for trade marks involving scent, taste and sound, holograms and moving pictures. The filing procedure in particular is expected to be facilitated.

Such improvements are highly welcome, although we are now faced with problems of practical implementation because neither detailed definitions for the forms of trade marks nor specific requirements for their representation have been furnished. Accordingly there is the risk that national trade mark offices accept trade marks (trade mark forms) on the basis of different national definitions and different requirements for their representation, which would hamper efforts to harmonise trade mark law in the EU member states.

In order to alleviate the implementation process, the European Union Intellectual Property Office (EUIPO) and the trade mark offices in the member states strive to ensure that the new provisions of the EUTMR and Trade Marks Directive will be uniformly implemented throughout the Europe-wide intellectual property network. The desired accord between trade mark offices, while it has no legally binding impact, aims to ensure some degree of harmonised implementation in the national legal systems, although it does not preclude some offices from permitting different electronic formats.

Thus, sound trade marks which previously required a musical notation for their representation can now be electronically filed by way of an MP3 sound file. Nevertheless other types of representation, such as sonagrams, a description of the sound in words, or onomatopoeia words are not to be accepted. Contrary to the EUIPO's practice, the Austrian Patent Office accepts WAV in addition to JPEG and MP3 files.

The trade mark reform has roused the interest of perfume producers, as, at least in theory, it should make it possible to register scent marks. However, the effect of abolishing the need for graphic representation so far is nil when it comes to filing scent marks, given that the application form has no "categories" and given the lack of a "generally available technology" for representing scent marks.

Videos or video sequences may now be protected through a motion mark. This needs to be represented by a video file (MP4) or a series of stills which show the movement or change in the position of the elements. Where stills are used they should be numbered or supplemented by a description explaining their sequence. Similarly, the new multimedia mark, a combination of images and sound, is represented by an audiovisual file (MP4). The new hologram mark can be represented by a video file or a graphical depiction of the views needed to show the full scope of the hologram effect.

A change has also been made with regard to colours: an application for a community trade mark no longer requires information on colours for image marks, in order to facilitate finding mark entries in the register. However, since some countries require written information on the colouring in order to grant priority, EUIPO offers an optional field in the application form in which to enter colours. They are not included in the EUIPO register, but their purpose is for the user to use them in the relevant country.

A trade mark that consists of a single colour or colour combination requires representation by a generally accepted colour code (such as RAL, Pantone, etc.). Yet, representing a trade mark by a colour code does not make it easier to register a so-called colour mark because a colour mark on its own usually lacks distinctiveness. Colour marks will thus continue to be granted in exceptional cases only – and typically only in a list of products that has been particularly specified. In the case of a colour mark, the representation by colour code does not preclude a stricter examination that considers not just its customary use in the course of business but also a general public interest in the further unrestricted use of such colour.

Generally it must be noted that the implementation process is still in its early stages. While some novelties have not yet caused an appreciable improvement for the user in actual practice, there are indeed new aspects which will facilitate filing non-conventional trade marks. We need to await developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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