A Typophile member asked me by email the question, whether he is permitted to digitize an old font no longer sold by the original foundry and then sell this digitized font using the old font name.
Since this is a question which will interest other Typophile members too, I summarize here what I wrote to the member, who asked me the question. While the trademark laws vary from country to country, there are usually two principles applied in most countries and summarized here at the Wikipedia website http://en.wikipedia.org/wiki/Trademark as follows:
"Proprietary rights in relation to a trademark may be established through actual use in the marketplace, or through registration of the mark with the trademarks office of a particular jurisdiction."
The Typophile member asked me, whether he is permitted to digitize the old font "Erbar Medieval" and sell it by its original font name "Erbar Medieval".
Here is a sample of one of the bold cuts of this old font
drawn from a book by Georg Kandler
"Erinnerungen an den Bleisatz", Volume 1, 1995, page 26
("Reminiscences of the foundry type era")
Erbar Mediaeval is a typeface which was designed by the German Jakob Erbar, who died in 1935 in Cologne in Germany.
Even if fonts were copyrightable in Germany (which they are not), the "70-years-post-mortem" copyright protection period would have expired a couple of years ago (1935 + 70 = 2005).
However, fonts may be registered as designs in Germany for a period of 25 years starting with the first publication of the font. This period expired too.
Since Erbar died in 1935, all his copyrightable works (e.g. his books etc.), if any, and all his fonts registered as designs, if any, have already fallen into public domain.
Therefore today nobody can can claim any copyright to the works and to the fonts made by Jakob Erbar, because Erbar's death was more than 70 years ago.
Do not make the legal mistake of claiming copyright to digitizations of the public domain Erbar fonts, because nobody can claim copyright to something that is in public domain. Neither the heirs of Erbar nor anyone else can do that. Therefore, a digitization of Erbar Mediaeval will be public domain too, just like the original font made by Erbar is public domain.
Many people at the Typophile website erroneously think that they can become the copyright owner of a public domain font by digitizing this public domain font. This is legal nonsense.
As regards the name of a font, it may be registered forever, provided you pay the trademark registration fees forever. I did NOT research in depth whether anyone registered the name "Erbar Mediaeval" for a font. Such a research is cumbersome and time-consuming, because the name of a product may be registered in any country of the world.
As regards the website www.bauertypes.com, a certain "c. Dr. Ferran, nº 6-8 Entlo 2º A 08034 Barcelona Tel. +34 931127993 - Fax +34 932524806" seems to be responsible for this website. At the subsite
"Trademarks: BauerTypes, como principal fabricante de tipografía en la era de plomo posee la patente o TradeMark de un sinfín de tipografías dentro del marco de los grandes clásicos. Entre las más destacadas se encuentran: ver listado"
However, the trademark list
does not even mention fonts by Erbar as trademarks
The Neufville website www.neufville says here:
"... Erbar Mediaeval ... are trademarks of Bauer Types SA"
"Neufville Digital makes no warranties as to the completeness or accuracy of this information."
The information that "Erbar Mediaeval" is a trademark of Bauer Types SA is inaccurate, because neither of the two requirements for a trademark protection are met:
Firstly, "Erbar Mediaeval" is not protected by registration
Secondly, "Erbar Mediaeval" is not protected by actual use
"Proprietary rights in relation to a trademark may be established through actual use in the marketplace, or through registration of the mark."
Since neither Bauer nor Neufville sell a font called "Erbar Mediaeval", this font name is no trademark by actual use. To mention a name of an old font in a list does not make you the owner of a trademark. You have to sell the font to achieve protection by actual use.
This means that the Typophile member is permitted to digitize the public domain font Erbar Mediaeval and to sell this font by its original font name Erbar Mediaeval.
However the Typophile member cannot claim copyright to his digitization of the public domain font. But he may sell the font against the payment of a font price (but not against the payment a copyright licence fee).
Remember: If you digitize an old public domain book, you do not become the copyright owner of this public domain book. The same holds true for old public domain fonts, irrespective of whether fonts are copyrightable or not.