To The Point: Pattern Marks ' Relatively New Kids On The Block

Published date13 March 2024
Subject MatterIntellectual Property, Trademark
Law FirmSchoenherr Attorneys at Law
AuthorKatharina Wegscheider and Michael Woller

Pattern trademark applications have only recently become feasible in Austria and at the EU level within the past few years and this particular form of trademark protects recurring elements of a pattern, irrespective of specific boundaries.

What is a pattern mark?

Pattern trademark applications have only been possible (in Austria and at EU level) for a few years now. This type of trademark protects regularly repeating elements of a pattern, regardless of specific borders.

Examples of pattern marks:

Source: https://euipo.europa.eu/

Difference to (word and) figurative marks

(Word and) figurative marks protect the overall impression of a graphic arrangement, either with or without word elements. This will often be a logo or lettering with graphic elements.

In the case of a pattern mark, on the other hand, the size of the pattern or the frequency (repetition) with which it is applied is irrelevant. This often concerns monograms or logos arranged in a certain way on packaging materials or the goods themselves, e.g. as a background pattern.

When does it make sense to register a pattern mark?

Application for a pattern mark is therefore recommended when a certain distinguishing pattern is used in varying forms and/or repetition, for example:

  • Differently shaped/sized goods
  • Differently shaped/sized packaging materials
  • Advertising material/communication (online appearance backgrounds in adverts, at trade fair booths, corporate identity/corporate branding elements).

Specific requirements

Just like (word and) figurative marks, pattern marks can be filed in colour and/or in black and white. The pattern mark application is filed without any "embellishments" such as logos, lettering or other design elements that are not part of the base pattern itself. For pattern mark applications in particular, the following should also be considered:

  • if the pattern appears in various colour combinations or also appears on a different background colour - if so, an application in black and white should be considered, although this may negatively affect the distinctiveness (and therefore the protectability) of the mark
  • if potential colour gradients are part of the pattern or if the pattern will also be used in its "pure form"
  • the size/level of detail of the pattern to be protected

Distinctiveness

In principle, no additional requirements apply when examining the (inherent) protectability...

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