Protection of trademarks
Characteristics of the international regime for the protection of well known trademarks. Protection of trademarks under Paris Convention, TRIPS and WIPO joint recommendation. Comparative analysis of famous brands in Italy, Pakistan and Uzbekistan.
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Table of Contents
Chapter 1. International Regime for the Protection of well known Trademarks
1.1 Protection of well known trade marks under Paris Convention
1.2 Protection of well known trademarks under TRIPS
1.3 WIPO Joint Recommendation for well known trademarks
Chapter 2. Protection of well known trademarks in Italy
Chapter 3. Protection of well known trademarks in Pakistan
Chapter 4. Protection of well known trademarks in Uzbekistan
Chapter 5. A comparative analysis
protection trademark brand
Well-known international trademarks such as Coca-Cola, Microsoft, IBM and Google surpass the boundary of marks known only in single countries. It is now generally accepted that these well-known marks should be given protection against later registration by third parties -- although laws to offer this protection are still being developed. The definition and protection of well-known trademarks is still a grey area internationally. Despite general recognition that protection should be given to well-known marks, the national laws implementing the Paris Convention Art 6 Bis at present give variable protection depending upon jurisdiction.
Well-known trademarks have been a legal concept that requires interpretation by the authorities of the country in which protection is sought. Its protective scope depends on the authorities' objective of protection of well-known trademarks. Mass media, telecommunications, travels and advertising promotion make people become familiar with the trademarks in other countries. Especially the extensive, skillful and modern advertising promotion can bring the high reputation to the owners. The effects of well-known trademarks extend to unrelated field in comparison with the original goods or services the trademarks are used. However, the trademark piracy and unfair use affect the owner of well-known trademark to expand their business activities under those marks in other jurisdiction. For the sake of the protection of consumers' interests and trademark owner's reputation, the enhanced protection of well-known trademarks has become the international trend.
Some trade marks are so well known that their fame transcends the bounds of normal trademark law. A "strong" and famous brand may give unrelated firms incentives to choose a free riding strategy to exploit the full potential of the brand: a small producer of skis might, for example, be interested in using the FERRARI brand for the launch of a new product line. Free riding may, in turn, generate negative spillover effects that may derive from a free riding strategy on a famous trademark. In reality, the defense of the extended protection of "strong" trademarks may be to a great extent based on the likelihood that free riding practices dilute the promotional value of a trademark. The rationale behind the extension of protection to include principles of antidilution and prohibitions against free riding has been clear to both courts and commentators from the very beginning. When a trademark may be perceived as "strong" because it possesses a distinctive character or is "famous," then its value is endangered by unauthorized uses by a non-related third party; this is true even though consumers may not be misled. Rather than aim merely to protect against confusion as to the origin of goods, these extended protections are intended to avoid dilution of the promotional value of trademarks and the misappropriation of the capital of publicity invested in trademarks. As a result, protections are now afforded to trademarks where they formerly might not have been. The trademark ROLLS-ROYCE can now be protected, for example, in most jurisdictions against its use as sign for a pub even if no consumer would be misled into believing that the trademark owner had branched off into pub franchises or that there is an association with or sponsorship of the pub by the luxury car manufacturer. For a finding of infringement, confusion as to the origin of goods is no longer required. It is sufficient that consumers establish some sort of link between the junior sign and the senior one, and such a link may be established even if the goods are comparatively remote.
However, even though a trademark has acquired the position of a globally well known trademark it cannot be said that their goods or services are actually supplied to the market in every country and in addition, this also does not mean that these trademarks are registered in every country throughout the world. Therefore, in the case such a trademark happens to be imitated or pirated in a country in which it is not registered or used yet, namely when a trademark identical or similar to such a well-known or famous trademark is applied for registration or begun to be used by an unrelated third party, the Trademark Office or Court of that country is confronted with complex legal issues in order to deal with this situation. Moreover in the case a third party applies for registration of this type of bothersome trademark under his own name or commences to use that trademark in respect of the goods or services that are quite remote from the goods or services on which the well-known or famous trademark is used, the Trademark Office or Court of that country encounters even more complex legal issues.
Chapter 1. International Regime for the Protection of Well-known Trademarks
1.1 Protection of Well-known Trademarks under Paris Convention
The universal body of law on well-known marks finds its roots in the 1925 addition of Article 6bis to the Paris Convention for the Protection of Industrial Property (hereinafter "Paris Convention"). Article 6bis states that partecipating countries agree to prohibit use of with the mark of someone esle and used on identical or similar goods.
This Article was introduced into the Convention by the Revision Conference of The Hague in 1925. It was somewhat modified at two subsequent Revision Conferences, held in London in 1934 and in Lisbon in 1958, but it still retains its original number. At the latter Conference, the Article was very thoroughly discussed and its application, which formerly concerned only the refusal or cancellation of the registration of a mark conflicting with a mark which is well known in the country concerned, was then extended to a prohibition of the use of the mark first mentioned.
For many years international trade mark law (as opposed to national law) concentrated on the protection that was granted to trade marks through registration. A frequent theme in the discussion of international trade mark law in the first part of the twentieth century was the extent to which rights should be granted, first, to unregistered marks and, secondly, to marks used on dissimilar goods or services. Hence, Article 6bis was originally designed to address the concept that owners of marks which were widely known in the marketplace but not registered needed some measures of protection against later registrations of the same mark by oythers. This was deemed to be particularly important in jurisdictions where the rights to a trade mark flow principally from registration rather than from mere use. However, the concentration on registration is no longer paramount ad in some legislations the distinction between the rights which derive from registration and those from mere use is blurred, most notably in the Regulation on the European Community Trade Mark, in which registration and user rights are both recognised.
As conceived in 1925, Article 6bis protected well-known marks only against the registration of identical or similar marks for identical or similar goods by an unauthorised third party. In 1958, at the Lisbon Revision Conference, when the subject of well-known marks was again very thoroughly discussed, it was agreed that the Article should be extended to protect well-known marks also against the unauthorised use of identical or similar marks. But, unfortunately, there was no agreement on two other proposals that were put forward, namely that the Article should be extended to include a provision for the well-known mark not to have actually been used in the country where the identical or similar mark had been applied for; and that the Article should be extended both to services as well as to dissimilar goods.
As will be seen from the text above, the Article permits the owner of a mark, either in person or through the relevant authority to resist, for a period of five years, the deposit, the registration, or the use, by a third party, for the same or similar goods, of a mark which reproduces, translates, or is an imitation liable to create confusion with his mark if it is well known but not registered.
At the 1958 Lisbon Conference, an attempt at clarification was made by including in Article 6bis the statement in sub-paragraph (1) that responsibility for deciding the well-known status of a mark lay with the competent authorities in any country applying its effects. Perhaps our predecessors thought that the meen...