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Introductory example

The example company develops and manufactures bicycle accessories, in particular high-quality tandem bars for children's bicycles. The company's mission is to make cycling safer and less stressful for families. A tandem bar connects two bicycles to form a parent-child tandem. The front end of the bar is attached to the parent's bicycle, while the rear end attaches to the child's bicycle. This allows the child to be pulled safely by the adult and ride along without having to steer. The front wheel of the child's bicycle is slightly raised to prevent the child from affecting the steering. The company has developed an innovative, collapsible tandem bar that is easier to transport and store. A special folding mechanism allows the bar to be folded quickly and easily without losing any of its functionality. It can be conveniently stowed in the trunk or attached to the bicycle to save space. The product is called “FamilyTrack,” a name that deliberately creates a connection to families and shared adventures. The name is intended to evoke positive associations and be easy to remember. In addition, an advertising song was released that became surprisingly popular, especially with children, which brought the product additional marketing success. The design of the tandem bar, which stands out from other products with its double S-shape, is not only visually appealing and immediately eye-catching, but also technically innovative. The bar is heat-treated at the factory and bent using special pressure, making it flexible and break-resistant at the same time. Despite their success, the founders are concerned that imitators could copy their idea before the company has established itself in the market. This raises the important question of how they can protect their product and brand from plagiarism and competition.

There is no universal “imitation protection” that protects against all types of imitation. Instead, various industrial property rights offer targeted solutions. These include patents that protect inventions, trademark protection for logos and names, design or model protection for the external appearance of a product, as well as copyright and other forms of protection.

The individual industrial property rights (patents, trademarks, designs, etc.) have different requirements and application deadlines. Some require early action before market launch, while others only become relevant in the event of specific infringements.

Patents

Patents serve to protect technical inventions that are new and inventive. The additional requirement of industrial applicability is rarely a problem in practice. As soon as an invention solves a previously unsolved technical problem in an innovative way, the possibility of patent protection should be investigated. This also applies to problems of lesser scope or solutions with a comparatively low degree of complexity. The decisive factor is that the invention has not been published prior to the patent application and is not obvious to a person skilled in the art.

The tandem bar initially appears to be a technical solution. Whenever a technical problem is solved by new mechanisms or procedures, it should be examined whether patent protection can be obtained for this innovation. It is irrelevant whether the problem solved is particularly large or the solution is overly complex.

In order to obtain a patent, the invention must be registered with the patent office, including a detailed description and technical drawings. It must be ensured that the invention is not made public until it is registered. The examination of a patent can take several years. Only after the patent has been granted is it possible to take legal action against competitors who use the invention without permission.

A patent offers a maximum of 20 years of protection, provided that the annual fees are paid. After the protection period expires, the invention becomes public domain, meaning it can be used without restriction.

Utility model

A utility model offers a faster alternative to a patent. In order to use a utility model to prevent competitors from using an invention, similar requirements to those for a patent must be met. The invention must be new at the time of application and must not be obvious. Unlike with a patent, however, the patent office does not examine the protectability, which speeds up the application process.

In general, however, there is greater legal uncertainty with utility models than with patents. Whether the invention is actually new and inventive is clarified for the first time in the event of a dispute.

One advantage of the utility model for the applicant is the grace period. Inventions that have been published by the applicant themselves within six months prior to the application can still be protected as utility models. Especially in cases where publication was unintentional, the grace period offers the possibility of obtaining at least a legally valid utility model, if not a patent.

Utility models are not available in all countries, but they do exist in Austria and Germany. In both Austria and Germany, they have a maximum term of protection of 10 years.

Trade secrets

A patent or utility model can relate to both a technical mechanism and a special manufacturing process, provided that it is new and inventive.

In the example of the tandem bar, not only the folding mechanism but also the special manufacturing method of the double S-shape using heat treatment would in principle be eligible for patent or utility model protection.

However, companies often refrain from patenting internal production processes because they are difficult to enforce. Proving that a competitor is actually using a particular process is often complicated.

In the case of tandem bar manufacturing in particular, it would be very difficult to prove whether a competitor is using the same heat treatment.

Another risk associated with patents is the obligation to publish: every patent granted makes the technical teaching publicly available, so that competitors also gain insight. In such cases, protection as a trade secret is therefore often a good option. A trade secret does not need to be registered with the patent office and is protected as long as it remains secret, has economic value due to its secrecy, and appropriate measures are taken to safeguard it.

Applied to the tandem bar, this would mean that the exact heat treatment and manufacturing process would be published, which could make it easier for competitors to imitate. If the heat treatment and manufacturing steps are not published but treated as confidential know-how, they are protected as trade secrets.

Legal enforcement is also possible in the case of trade secrets: abusive use can be prosecuted and injunctive relief can be sought.

For example, the manufacturer of the tandem bar could take action against competitors if they obtain and use the information on the special manufacturing process by unfair means.

The difference between a trade secret and a patent is that the secret remains protected indefinitely as long as the requirements are met. In contrast to a trade secret, patent protection is limited to a maximum of 20 years. After that, the invention becomes freely usable.

A trade secret about the manufacture of the tandem bar, on the other hand, would remain permanently protected as long as confidentiality is guaranteed.

Finally, it is important to note that patents and trade secrets are mutually exclusive: once a patent application is filed, the invention is published and can no longer be considered a trade secret.

The heat treatment of the tandem rod can either be patented, disclosed by the patent office, and protected for a limited period of time, or it can be kept secret and permanently protected as a trade secret—it is not possible to do both at the same time.

Trademarks

Trademarks serve to distinguish products or services by means of a specific label and enable clear attribution to the provider. They evoke associations in customers, create trust, and can stand for quality without being an official seal of approval.

In the example, the product is called “FamilyTrack.” This name is intended to generate recognition in marketing and evoke certain ideas in the customer's mind. Ideally, “FamilyTrack” stands for a certain quality and ensures market awareness.

The legal purpose of a trademark is to monopolize the use of a particular sign. Only the owner may use the sign for their products to indicate their origin.

For “FamilyTrack,” this means that only the company that has registered the name may use it in business transactions for the products in question.

On the market, the trademark makes it clear who is behind a product. Customers associate it with expectations of quality, which can be reinforced by positive experiences and lead to recommendations.

If “FamilyTrack” is perceived as high quality, this strengthens customer loyalty and can shape the company's reputation in the long term.

From a legal perspective, the trademark is an independent property right that comes into being after successful registration with the relevant office. The office checks certain requirements and registers the mark.

The patent office checks whether “FamilyTrack” is eligible for registration as a trademark for bicycle accessories and, if so, registers the trademark. “FamilyTrack” then becomes the trademark of a brand and enjoys protection against imitation by competitors.

Unlike patents, trademarks do not have to be new in a technical sense, but only distinctive and not already protected for identical goods or services. Subsequent registration after product launch is also possible.

This means that “FamilyTrack” could still be registered after its market launch. However, there is then a risk that owners of older trademarks will file an opposition and contest the registration.

Even if a trademark does not have to be new, i.e., unknown on the date of application, there is a possibility that the owners of existing trademarks will defend themselves against new registrations. The Patent Office only examines such conflicts if the owners of the older trademark defend themselves.

If “FamilyTrack” has already been registered by a competitor, there is a risk that owners of older trademarks will file an opposition and have the trademark removed.

A trademark initially has a term of protection of ten years. However, it can be renewed as often as desired, as long as the required fees are paid and the trademark is actually used.

For “FamilyTrack,” this means that protection can theoretically be unlimited as long as the company uses the trademark, i.e., sells bicycle accessories under the trademark and regularly pays the renewal fees.

Unregistered trademark rights

It is not mandatory to register a trademark in order to enjoy protection. A certain degree of protection may exist even without registration. In Austria, competition law offers protection for unregistered trademarks, and in Germany there are also so-called unregistered trademarks.

For “FamilyTrack,” this means that the name could be protected even without formal registration. However, this protection depends on “FamilyTrack” already having achieved a certain level of recognition in the market.

These rights only arise when the sign is so well known among the relevant public that it can be clearly attributed to a specific provider. In cases of dispute, it must be proven that this level of recognition has been achieved.

In the case of “FamilyTrack,” it would be crucial to determine whether customers actually associate the name with the company's products. Only if this can be proven could the company take legal action against third parties who use the name without authorization. Otherwise, there would be a considerable risk that the protection would not apply.

Design protection

Another way to protect products is through design law. It protects the external appearance of products from imitation. Various visual aspects such as shape, color, or pattern are eligible for protection, provided that they are not yet publicly known.

In the case of the tandem bar, the specific double S-shape in particular could be registered as a design, provided that it is new and has not been published prior to registration.

Design protection relates exclusively to aesthetic features. Technical solutions or elements that are determined solely by their functionality are not covered.

For the tandem bar, this means that only the special shape would be protected as a design, but not the technical folding mechanism.

To obtain design protection, the design must be registered with the patent office. The object of protection is defined by the images submitted, which are only superficially examined by the office to determine whether they show the same object.

For the tandem bar, this would mean that the characteristic double S-shape could be depicted in corresponding illustrations and thus protected as a design.

Once successfully registered, the protection is initially valid for five years. It can be extended to a maximum of 25 years by paying renewal fees.

The developer of the tandem bar could protect the double S-shape from imitation for up to 25 years, provided that they pay the required fees regularly. After the design protection expires, the double S-shape can be used by competitors.

Copyright

Even if a summer hit does not immediately come to mind as “high art,” a piece of music composed and written by oneself usually falls under this category. Both the lyrics as works of literature and the compositions as works of music are protected. Applied to a company, this means that the content of a company website—i.e., texts, images, or graphics—as well as specially produced advertising videos can also be protected by copyright.

The hurdle for copyright protection is comparatively low. Any work that exhibits a certain degree of individuality and is an expression of the author's personality enjoys this protection. Unlike other property rights, no registration is required; copyright arises automatically with the creation of the work.

This means that a company's website texts and visual content also enjoy immediate protection as soon as they are created – without registration and without additional formalities.

Copyright also offers a particularly long term of protection: it only ends 70 years after the death of the author. During this period, no fees are payable and the protection is valid internationally.

This means that company content such as photos, videos, or texts are automatically legally protected for decades, as long as it is clear who the authors of these works are.