| Abstract [eng] |
Protection of trademarks with reputation under secondary EU law induces controversy in practice and in legal doctrine, primarily because of the conception of special conditions of protection –„blurring“, „tarnishment“ and „free–riding“ – as well as in determining proper limits of such protection. This master thesis approaches special conditions of protection in individually analyzing forms of detriment and unfair advantage of distinctive character and reputation of the earlier mark. For the attainment of providing detailed analysis of „blurring“, „tarnishment“ and „free–riding“, the author indicates reasons why special conditions of protection were embedded in EU law, qualifies their role in defining ambits of protection and reviews significant historical aspects. In addition, considering the fact that application of special conditions is influenced by material conditions of protection – attention is given to link between conflicting marks and requirement of using latter mark without due cause as well as to aspects of the previous mark (the requirement of reputation and distinctive character). Furthermore, the analysis focuses on assessing new criteria and relevant positions of the Court of Justice relating to special conditions of protection in order to provide the answer to the question if owners of the trademarks with reputation can profit from effective protection, however without gratuitously restricting other’s right to use marks as free as possible. The research has demonstrated that currently it is difficult to evaluate the effectiveness of the protection of trademarks with reputation, likewise the ambit of it. By demanding the change in economic behavior of the consumers (which is considered to be not only vague, but also intricately applicable) in order to prove “blurring” and prohibiting “free–riding” per se (by compounding the elements of “unfairness” and “gaining advantage”), the Court of Justice has simultaneously narrowed limits of protection (in case of “blurring”) and unjustifiably broadened the scope of protection (in case of “free–riding”). Moreover, last mentioned findings of the court not fully correspond to consisted and simply applicable rules developed by the General Court and Office for Harmonization in the Internal Market (Trademarks and Designs). |
