Plačiai žinomų ir reputaciją turinčių prekių ženklų teisinė apsauga: teisinio reguliavimo Europos Sąjungos valstybėse narėse tendencijos

Abstract

The scope of the legal protection of unregistered well-known trademarks, registered well-known trademarks and registered trademarks with a reputation as well as the “systematic dilemma“ regarding the inter-relation between these legal concepts (Paris Convention, Art. 6bis; TRIPS Agreement, Arts. 16(2) and 16(3); Trade Mark Directive, Arts. 4(2)(d), 4(3), 4(4)(a), 5(2); Regulation on the Community Trade Mark, Arts. 8(2)(c), 8(5), 9(1)(c)) has a long history of diverse analyses, debates, and interpretations. This article makes a comparative analysis of the current trends within the EU Member States on the legal protection of unregistered well-known trademarks and registered rights beyond the principle of speciality (well-known or reputed trademarks). The analysis demonstrates that a number of Member States have already found a solution to the “systematic dilemma”, which is outlined in international and the EU laws. The research establishes that a number of Member States, even though protecting registered trademarks beyond the principle of speciality as stated in Art. 16(3) of the TRIPS Agreement, and Arts. 4(3), 4(4)(a), 5(2) of the Trade Mark Directive, also make it possible to protect unregistered well-known trademarks with respect to different goods and (or) services. This study aims to prove that the conditions for this type of protection are the same (or very similar in their legal content) as it is outlined in the above mentioned provisions of the TRIPS Agreement or the Trade Mark Directive. The research, on which this study is based, enables the author to conclude that the current trends reveal three levels of protection: first, unregistered well-known trademarks within the ambit of the principle of speciality; second, registered well-known or reputed trademarks beyond the principle of speciality; and third, unregistered well-known trademarks beyond the principle of speciality.