International Trademark Law detailed discussion
International Trademark Law
Trademarks are symbols used to distinguish various brands and services. They are usually unique to a particular producer or source and are protected by trademark laws. Any particular person infringing the rights of associated with a given trademark is subject to legal action and may be fined. It is worth noting that these trademark laws differ from one country to another and across European nations. This essay seeks to examine Jena, Kane and Bale industries with particular emphasis on their rights to trademark use. Moreover, it will provide these industries with legal advice pertaining to the use of their particular trademarks and the consequences.
Advice to Kane and Jena Industries. 1
Advice for Jena Concerning Bale Registration. 4
Assumption that Kane had no Trademark Registered in France. 4
Advice to Kane and Jena Industries
It is worth mentioning that the significance of CTM lies in it geographic stretch: for the capital, no advanced value can be held for defending a trademark across the entire European member states. Moreover, the law that protects and safeguards the CTM holdershas developed in a way that appreciates that the allowance of rights, associated with a particular community which can be enforced against regional infringements in the entire European Union member states. Kane industry registered its trademark in France; which is a member of European Union before Jena obtained its license. The reputation Kane has earned from its national registration is enough to allow it to sue or place a revocation against a competitor. Considering that Jena markets its products as anti-anxiety, using the trademark DE-STRESS, it is more likely that it would take unfair and unmerited advantage of the reputation earned by Kane in marketing its products as anti-anxiety using the trademark DISTRESS as depicted in Article 9(1) (c) CTMR. Additionally, Kane unarguably had a distinguished reputation in France where its anti-anxiety drugs were used by many people despite the government investigation into the ingredients used
in the manufacture of the drugs. “Reputation in a member state” as definedin 2Article 5(2)of the trademark directives entails having a reputation in a considerable part of that community as stipulated under the 1Article 9 (1) (c) of CTMR which therefore means thatKane holds the European Union wide protection for a trademark it only uses in France and can rely on this particular local or rather regional reputation to establish an infringement or contravention claim against Jena on grounds of 1Article 9(1) (c) CTMR which does not even call for likelihood of confusion via almost similar trademarks in order to take action. In this case, the national rights will override the CTM hence Jena’s trademark can be invalidated based on these grounds. It is also worth mentioning that in many quarters; it has been shown and proven that national registration has more geographical coverage than CTM for instance, a national trademark registered in Denmark covers both Greenland and the expansive Faroe Island which the CTM fails to cover. This fact gives Kane an edge in its claim to have Jena’s trademark invalidated.
Kane can also revoke the Jena’s trademark on grounds of 1Article 8(1) CTM because Jena uses an almost 3similar trademark DE-STRESS to market its products. Furthermore, the products are marketed as anti-anxiety products same as the Kane’s products which undermines1Article 8(1) (a) CTM. As said earlier, marketing the DE-STRESS products as anti-anxiety agents also gives them an unfair advantage over the reputation of the Kane industry in the community. Of particular interest in this matter is the fact that Kane can also lay a seniority claim.
This is a definite case of dilution by blurring because it is with no doubt that Kane, considering that it was the first to be registered under national registration guidelines, can easily prove that it has earned a reputation for its trademark DISTRESS which is associated with similar services offered by Jena under the trademark of DE-STRESS.Moreover,Jena using its CTM and the trademark DE-STRESS in France will undoubtedly be detrimental to the reputation earned by the trademark DISTRESS in France as both the services offered and to some extent, the trademark, are similar. All thesewill be in line with 1Article 8(5) which will require Kane to prove that the trademark DISTRESS is registered and known to a substantial portion of the community and if it does so, then definitely the trademark DE-STRESS associated with Jena will be deregistered under 1Article 53(1) CTM.
Alternatively, to avoid its license being revoked and ensure that its trademark continues to enjoy reputation in other European member countries apart from France, Jena Inc can file with OHIM to convert its CTM to national application in various countries of interest. This should be done within three months from the date its trademark license was revoked. This would make Jena enjoy the European wide protection for its trademark and may keep away a non-use revocation applied by Kane or any other opposition parties, as it gives proof of use in a given European Union member state. Therefore, it will be considered as enjoying reputation in ‘substantial part of the European Union’ as stipulated in 1Article 9(1) (c) CTMR enabling it to carry out its transactions in various countries using the trademark DE-STRESS. It can also lay a seniority claim in those member countries which may thwart unwarranted oppositions or even cancellation actions by unsatisfied parties.
1COUNCIL REGULATION (EC) No 207/2009 of 26 February 2009 on the Community trade mark
Advice for Jena Concerning Bale Registration
If Kane succeeds in its quest to have the trademark DE-STRESS associated with Jena revoked, then there would be no trademark registered as DE-STRESS. Subsequently, under 1Article (4) CTMR, Bale will be justified to register the trademark DISTRESS in United Kingdom. However, if the trademark DE-STRESS is not revoked then under 2Article (4) (b) of the trademark directives, the trademark DISTRESS related with Bale Company will not be registered as stipulated in 1Article (8) CTMR because it is very 3similar to DE-STRESStrademark owned by Jena. If in any case Bale succeeds in registering its trademark then under 2Article (4) (d) of the trademark directives, Jena will lay an opposition claim considering that the three year grace period will not have expired.
Assumption that Kane had no Trademark Registered in France
In such a scenario, Kane’s trademark will have the protection of the national guidelines on trademarks and subsequently the European Union wide protection for its trademark. Jena would therefore be free to establish and register its DE-STRESS trademark in France. Consequently, under 1Article (7) CTMR, Bale’s DISTRESS trademark will not be allowed to register in United Kingdom.
All in all, this essay has discussed the circumstances for acceptance, invalidation and denial of trademark registration. Trademark laws ensure free and fair trade amongst different industries and companies. Particularly, they maintain parity in the business world as elucidated in the essay.
Trademark Directive 2008/95/EC of the European Parliament and of the Council of 22 October
2008 to approximate the laws of the Member States relating to trade marks, Official
Journal of the European Union
Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark,
Official Journal of the European Union
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