Pattern Marks – Relatively New Kids on the Block

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/ohimportal/en/web/guest/trade-marks-examples#Pattern_mark

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 of a pattern mark (particularly with regard to its distinctiveness) compared to examining "conventional" trademark types, such as word or (word and) figurative marks.

However, due to their nature (similar to shape marks or abstract colour marks), pattern marks run the risk of being perceived by the relevant target group first and foremost as a form of decoration, rather than an indication of commercial origin. Therefore, before filing an application for a pattern mark, it is advisable to assess the risk of rejection and, if necessary, to preemptively counteract this risk by adding distinctive elements.

Difference to a registered design

A registered design is an IP right with a different purpose. While trademarks (including pattern marks) serve primarily to indicate the commercial origin of products and to protect them against likelihood of confusion, registered designs protect the outward appearance of products or their packaging. Further key differences include the following:

• Design protection is limited to a maximum protection period (maximum of 25 years), while trademark protection can theoretically last forever.
• Requirements for protection are different – particularly, registered designs are only protected as long as they are new, while trademark protection can also be obtained for designs that are already established on the market.
• The scope of protection is also different, in accordance with the differing purpose: trademarks are primarily protected against likelihood of confusion, while designs are protected against imitations or appearances that do not create a different overall impression.

The decision as to whether it is best to protect a certain pattern by way of a pattern trademark registration, a design registration or even by both in parallel should therefore be considered strategically on a case-by-case basis.