Intellectual property (IP)
for small businesses and start-ups

Yes, a name can usually be protected as a trade mark, provided it is eligible for protection (purely descriptive terms are excluded) and does not infringe existing trade marks. It is therefore advisable to carry out a trade mark clearance search before applying. At registration, the trade mark office does not examine whether similar earlier trade marks exist. This only comes to light if an opposition is filed, which can be expensive.

The official fees for a trade mark application depend on the scope of protection. For national trade mark protection in Germany, the fee for filing electronically with the German Patent and Trade Mark Office (DPMA) is EUR 290. This covers up to three classes of goods and services (trade mark classes); each additional class costs EUR 100. EU-wide protection through the European Union Intellectual Property Office (EUIPO) costs EUR 850 for one class, EUR 50 for the second and EUR 150 for each additional class.

There are further costs for the trade mark clearance search and for review and filing by a lawyer.

Trade marks, designs, patents and copyright all confer intellectual property rights, but each protects something different. A trade mark protects signs (name, logo) and distinguishes what you offer from what others offer. A design describes the outward appearance of a product and can protect it. Patents (and utility models) protect technical inventions. Copyright protects personal creations such as texts, photos and software. Unlike the others, it always arises without registration and, under German law, cannot be transferred; only rights of use can be granted.

The same product can be protected in several ways. A computer, for example, can be covered by several patents for technical inventions, and its specific shape can be protected as a design. The name and the logo can be trade marks, and the software and the pictures on the box are usually protected by copyright.

There is no general ban on using AI-generated images and texts commercially. The terms of use of the major providers generally permit commercial use but may impose restrictions. However, the output may infringe third-party rights in individual cases, for example if the images or texts are too similar to other works. It is often irrelevant whether you know this or could have known it. For example, the AI may also have been trained on protected works and then reproduce them. The responsibility often lies with you as the user. In addition, purely AI-generated content is often not protected by copyright, so you may not be able to grant licences for it. You may also have disclosure obligations, for example under the AI Act.

If you have received a cease-and-desist letter, you should act quickly. Take the deadline it sets seriously. However, you should not simply sign the cease-and-desist declaration without reviewing it. The declarations provided are often drafted more broadly than necessary. In most cases, it also makes sense to review the facts. If the cease-and-desist letter is justified, in most cases you will also have to bear the costs. However, German unfair competition law makes exceptions for small businesses for some infringements.