Trademark limitations post registration : do such limitations weaken a trademark or do they strengthen the system even further?

Abstract

Registration of a trademark is the recognition at law of rights which are inherent to its proprietors. This recognition at law gives exclusive rights to the proprietor of a trademark to make use of such mark as he pleases or to empower others to make use of the trademark according to the terms and conditions laid down by the proprietor. However such rights are not absolute in nature. This thesis seeks to first and foremost determine what such rights are, the manner in which they are acquired and the process leading to such acquisition of exclusivity. After this has been established, this research will delve into the limitations on these right and the effects such rights will have on the exclusivity the trademark proprietor enjoys. The analysis will delve into statutory limitations which directly relate to a trademark and other forms of indirect limitations which are also applicable to trademarks, such as the provisions found in the Commercial Code. Moreover there exist other concepts in trademark law which will result in a barrier to this exclusivity other than the statutory tests of infringement. An analysis of such concepts will also be undertaken to determine the manner in which the proprietor’s ability to exercise his rights are diminished. The final objective of this thesis will then be to determining if such limitations enhance the overall system or not and propose, if necessary any amendments which are deemed necessary for the better functioning of the system. Such proposals will try to maintain the necessary balance needed in order for a trademark registration system to properly function that is, a balance between the interests of the trademark proprietors, the interests of direct or indirect competitors, the interests of the final consumer of the product or service and the interest of the target market in general.