| Abstract [eng] |
This master thesis analyses the concept of detriment to the distinctive character of the trade mark. The main attention is paid to the existing European Union legal framework and practice of the European Court of Justice on this issue. Whereas the European Court of Justice has not yet dealt with all conditions concerning the detriment to the distinctive character of the trade mark, the rulings and decisions of the Opposition Division and Boards of Appeal of the Office of harmonisation for the Internal Market are widely analysed in this thesis as well. To provide proper analyses of the issue of detriment to the distinctive character, the historical developement of this concept as well as the questions cocnerning the relation between the detriment to the distinctive character and other trade mark infringements are discussed in this paper. While analysing the conditions for the protection against detiment to the distinctive character, the reference is made to the legal framework and practice of the United States concerning the issue. Concept of the detriment to the distinctive charecter of the trade mark is associated with the broader protection given for the trade marks bearing reputation. On the basis of detriment to the distinctive character of the trade mark protection concerning dissimilar goods or services is provided as well, that is impossible under the basis of traditional trade mark infringements, where the likelihood of public confusion is required. The aim of this concept is to preseve the distinctiveness, uniqueness of the trade mark and investements made for creating reputation of the trade mark. In cases of detriment to the distinctiveness some specific requirements, compared with the traditional trade mark infringements, are applied for the trade marks. Reputation of the trade mark is one of the most outstanding requirements. In order to proceed with a claim against detriment to the distinctive character, one has as well to prove the likelihood (in cases of opposition to registration) or the actual detriment (in cases of unlawful use) to the distinctive character of the trade mark. Detriment to the distinctive character includes situations where a sign identical or similar to the earlier trade mark is used on other dissimilar or similar goods and where such use creates dilution of the trade mark‘s distinctiveness. Although this does not cause likelihood of confusion among public, but it eliminates the unique association which the public used to have in its mind concerning the trade mark and the goods or services traditionally marked with it. |
