Trademark Protection without Registration

Something often overlooked is the fact, that under German law an unregistered mark may be trademarked without registration enjoying comparable protection as a registered trademark. How so?

According to Sec. 4 no. 2 Trademark Act, trademark protection may also originate from the use of a mark in the course of business as far as a sign has acquired secondary meaning as a trade mark in the relevant public.

Based on Sec. 12 Trademark Act a registered trademark may even be deleted from the register, if there is a trademark originated from use if the registered trademark has a lower priority, i.e. the registered trademark is “younger”.

Of course, this does not mean registering trademarks in Germany is obsolete as the acquisition of a secondary meaning as a trademark doesn’t happen overnight, thus leaving a sign unprotected not to mention the burden of proof.