Concept of a Well-Known Trade Mark and Criteria for Determination of Whether a Trade Mark is a Well-Known (Some Theoretical and Practical Aspects)
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Abstract
The aim of the article is to disclose the essence of the concept of a well-known trade mark as the one of the civil rights objects and to examine criteria, which could be important in determining of whether a mark is a well-known. Those questions are examined according both theorethical and practical aspects, presenting the analysis of the case law of Lithuanian courts dealing with the disputes related with the determination of whether a mark is a well-known.
Article 6bis of the Paris Convention for the Protection of Well-Known Trade Marks is the main provision in the international law, providing requirement to grant a protection to the well-known trade marks. References to this provision are indicated in international as well as in the European Union law. Seeking to disclose the essense and the legal nature of the concept of the well-known trade mark, the circumstances because of which the member states of the union of the Convention during diplomatic conferences decided to supplement the Convention with the provision regarding the protection of the well-known trade marks (which was not in the initial variant of the Convention) are discussed in the article. Examining the criteria which could be important in determination of whether a mark is a well-known mark, a lot of attention is paid to analyse the elucidations provided in the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the World Intellectual Property Organisation. There is undelined in the article, that independently to the criteria according which is going to be made a determination of whether a mark is a well-known mark (which are foreseen in the Reccomendation or not), it is necessary to estimate the degree how much the trade mark is known by the public (consumer).
The conclusion which is made in the article, is that in determination of whether a mark is a well-known mark, the main point and the „inner criteria“ should be - does taking into account the concret circumstances of the concret case, it would be reasonable and fair to recognise for a trade mark a higher standart of the protection, than it would be according the usual administrative registration procedure. In this case the attention should be paid to how strong is in the market the return connection: producer of the goods or service provider - goods and (or) servises marked by the trade mark - society (i.e. consumer of the goods and (or) servises).
Article 6bis of the Paris Convention for the Protection of Well-Known Trade Marks is the main provision in the international law, providing requirement to grant a protection to the well-known trade marks. References to this provision are indicated in international as well as in the European Union law. Seeking to disclose the essense and the legal nature of the concept of the well-known trade mark, the circumstances because of which the member states of the union of the Convention during diplomatic conferences decided to supplement the Convention with the provision regarding the protection of the well-known trade marks (which was not in the initial variant of the Convention) are discussed in the article. Examining the criteria which could be important in determination of whether a mark is a well-known mark, a lot of attention is paid to analyse the elucidations provided in the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of the World Intellectual Property Organisation. There is undelined in the article, that independently to the criteria according which is going to be made a determination of whether a mark is a well-known mark (which are foreseen in the Reccomendation or not), it is necessary to estimate the degree how much the trade mark is known by the public (consumer).
The conclusion which is made in the article, is that in determination of whether a mark is a well-known mark, the main point and the „inner criteria“ should be - does taking into account the concret circumstances of the concret case, it would be reasonable and fair to recognise for a trade mark a higher standart of the protection, than it would be according the usual administrative registration procedure. In this case the attention should be paid to how strong is in the market the return connection: producer of the goods or service provider - goods and (or) servises marked by the trade mark - society (i.e. consumer of the goods and (or) servises).
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