Lee & Schwerbrock
German Law Firm
During the EU summit of 29.6.12 the EU member states have finally reached an agreement on the location of the central
division of the future European patent court. The highly debated
questions on location of the court was the last major obstacle on the
way to the new European unitary patent system. The member states agreed
on a compromise with Paris as the central division and a
specialized branch in Munich handling cases involving mechanical
engineering and an arm in London dealing with pharmaceuticals. The
Unified Patent Court is part of the unitary patent system, a
legalisation proposal which, after almost 40 years of debate, was
adopted by the European commission on April 2012. The European
parliament is expected to vote on the European unitary patent
legislation package beginning of July 2012 and the European council
will adopt the regulations shortly after. As the regulations has been
agreed upon under a so-called intergovernmental treaty among European
countries, the member states will have to be ratified by a
sufficient number of states -- at least 13 nations. It is expected that
the ratification process is finished by 2012 and the first patent title
with unitary patent protection will be issued in 2014.
In a decision of March 31 2009 the European Commission and the European Member states have decided a fundamental decrease of the official fees for an EU trademark (so called “Community Trademark”)
Currently companies pay two separate fees for trademark protection – one for application and another for registration. Starting in May, these will be replaced by a single fee to save time. The official registration fee which the applicant so far had to pay upon the registration of a Community Trademark shall be omitted.
In case of a online application the Applicant of a Community Trademark will now pay single application fee of €900 instead of previous €1 600 for application and registration. The new fees shall apply for applications filled on or after 1st May 2009.
New German law relieves administrative obligations of small and medium business [12/07/2006]
The German parliament has passed a new law ("Mittelstandsentlastungsgesetz"), which will relief small and medium business from certain administrative and documentary burdens. For example, after this law takes effect on 1 January 2007, the general bookkeeping obligation will only apply to business having a turnover exceeding 500,000 Euro (instead of the current threshold of 350,000 Euro) in the preceding calendar year. Furthermore, the simplified invoice form will apply to payments up to 150 Euro (instead of the current ceiling of 100 Euro).
On May 20, 2006 the German Parliament decided on the long-discussed issue of raising the VAT rate, which was at 16%. Beginning from January 1, 2007, most of the goods sold and services provided within Germany will be subject to a VAT of 19 %.
A few weeks prior to the beginning of the Football World Cup 2006, which is organized by the Fédération Internationale de Football Association (“FIFA”), the highest German court rendered a decision partially canceling FIFA’s German registered trademarks “FUSSBALL WM 2006”(“football world championship 2006” in German) and “WM 2006” (“world championship 2006” in German) on grounds that these trademarks are descriptive and lack of distinctiveness.
In year 2002, about 4 years before the Football World Cup 2006 in Germany, FIFA registered and obtained, among others, German trademarks for “FUSSBALL WM 2006” and both EU and German trademarks for “WM 2006” in all categories of products and services. In 2003 cancellation proceedings against FIFA’s EU and German trademarks were respectively initiated on the basis that these trademarks are descriptive and that FIFA acted in bad faith when filing the relevant trademark applications.
During the EU cancellation proceedings, FIFA’s EU trademark “WM 2006” was initially sustained. Nevertheless, the appeal proceedings is still pending.
Different from the EU trademark, FIFA’s German trademarks were partially cancelled by German Patent and Trademark Office in 2004. FIFA filed an appeal against such decision with the Federal Patent Court (the competent court for such cases) and the court ruled that these marks are descriptive for certain products and services related to this event, for example, sport goods and products, shoes and clothing, travel arrangements, entertainment, food and drinks services etc. On ground of this, the court cancelled FIFA’s said trademarks with respect to the above-mentioned products and services. Appeal was then filed with the Federal Supreme Court against this decision. The Federal Supreme Court recently rendered its decision and extended the scope of cancellation with respect to “FUSSBALL WM 2006” to all goods and services in direct relation to the football world championship due to the mark’s descriptive nature and the lack of distinctiveness. As to “WM 2006”, the Federal Supreme Court sustained the partial-cancellation decision of the Federal Patent Court and with respect to the un-cancelled part of the trademark, the Federal Supreme Court referred the case back to the Federal Patent Court for further examination of whether the trademark is descriptive for other goods and services. The Federal Supreme Court’s decision is final and conclusive.
The currently contradict results of the cancellation of FIFA’s EU and German trademarks has led to an ironic situation that since FIFA’s EU trademark is still effective in all member states including Germany, the “gaps” of the partially cancelled German trademark “WM 2006” is filled up by the corresponding EU trademark. The use of “WM 2006” in Germany is despite of the Federal Supreme Court’s decision still subject to FIFA’s authorization.
According to EU Treaty, companies in any EU member state are allowed to send their employees to other member states for provision of services without obtaining work permits for such employees. This also applies to employees who are non-EU national; although residence permit / visa is still required for these non-EU national employees.
In Germany, in order to obtain the aforesaid residence permit (which is issued in the form of visa), certain requirements shall be met. One of such requirement was that the non-EU national employees must have been employed by that EU company, which dispatches the employee to Germany, for over 12 months. Due to this requirement, the flexibility for the employer to re-allocate its manpower is limited.
In January 2006, the European Court of Justice ruled in a case (No. C-244/04) that the above-mentioned requirement was in violation of the EU Treaty. The court requested that Germany shall issue residence permit / visa on ground of the EU employers’ simple declaration. According to this decision, the previous requirements of a prior employment period of 12 months and the provision of employment agreement shall be lifted. The loosened requirements relating to dispatching non-EU national employees to Germany allow EU employers more room to decide on an appropriate and cost-saving human resource plan.
©2006. All rights reserved. Information contained in this website is for reference purpose only and is not intended to constitute legal advise on specific matters. Should there be any specific legal issue, please consult with our attorneys.