Harmonisation of the Legal Regulations of the Republic of Lithuania Regarding Well-Known and Reputation Having Trade Marks with the Relevant EC Law
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Abstract
Upon legal evaluation of regulation of the status of a well-known trade mark in the Republic of Lithuania, it can be concluded that basically the legal rules of the Republic of Lithuania comply with the relevant requirements for well-known trade marks set forth in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and 20 March 1883 Paris Convention for the Protection of Industrial Property. However, they are not precisely approximated with the relevant provisions of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (Directive) and Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark (Regulation), which has impact on the volume of the proprietary rights to the registered or well-known trade mark, accordingly.
The reputed trade mark is a new legal term in Community law, for which there is no official definition so far. It is also a new term in the Lithuanian trade mark law. Also there is no intention in the Directive and Regulation to unify the criteria for identification of a well-known trade mark, except by providing a reference that the term of a well-known trade mark meets the term provided in article 6 bis of the Paris Convention. Therefore, practice of identification of well-known and reputed trade marks may differ significantly from state to state in the EC and may be defined unilaterally only upon a decision of the European Court of Justice. The tendency is that the definition of the reputed Community trade mark will mainly deal with the reputation of a mark (qualitative criterion) and not its notoriety. The quantitative criterion of notoriety will likely serve as an indicator of a trade mark’s reputation but not as a precondition with a fixed minimum degree of notoriety within the trade circles concerned.
In the law of the Republic of Lithuania, likewise in the relevant EC law, criteria for identification of “trade mark having a reputation“ are not established. Presumably, in practice it will cause many problems for court when solving whether a particular trade mark is a well-known or has a reputation. Evaluating the scope of the rights granted by the Law on Trade Marks of the Republic of Lithuania the difference of a trade mark having a reputation from the registered well-known trade mark is not clear.
The reputed trade mark is a new legal term in Community law, for which there is no official definition so far. It is also a new term in the Lithuanian trade mark law. Also there is no intention in the Directive and Regulation to unify the criteria for identification of a well-known trade mark, except by providing a reference that the term of a well-known trade mark meets the term provided in article 6 bis of the Paris Convention. Therefore, practice of identification of well-known and reputed trade marks may differ significantly from state to state in the EC and may be defined unilaterally only upon a decision of the European Court of Justice. The tendency is that the definition of the reputed Community trade mark will mainly deal with the reputation of a mark (qualitative criterion) and not its notoriety. The quantitative criterion of notoriety will likely serve as an indicator of a trade mark’s reputation but not as a precondition with a fixed minimum degree of notoriety within the trade circles concerned.
In the law of the Republic of Lithuania, likewise in the relevant EC law, criteria for identification of “trade mark having a reputation“ are not established. Presumably, in practice it will cause many problems for court when solving whether a particular trade mark is a well-known or has a reputation. Evaluating the scope of the rights granted by the Law on Trade Marks of the Republic of Lithuania the difference of a trade mark having a reputation from the registered well-known trade mark is not clear.
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