The notions of detriment and unfair advantage in the protection of trademarks with a reputation

Abstract

A trademark is a communication tool; it is the symbol by which an undertaking presents itself to the public. It communicates the message which its proprietor is trying to send to the public relating to the goods and services that it offers, and it also has an advertising function, as the trademark may contain details about the products it offers, and possibly even the philosophies of the undertaking itself. The recent development in technology and social media has led for trademarks to rely much more on their image and the message they portray. It is imperative for the trademark to retain and protect its image, and the reputation that comes with it. This study will discuss how the law protects the repute and the functions of trademarks of a reputation, particularly, the improvements of trademark protection provided for in the 2015 Trademarks Directive. This dissertation shall go into the relative grounds of refusal of a trademark, in cases where there is an earlier mark of a reputation which is at risk of being damaged through its unlawful appropriation by a later mark, with the aim of protecting the earlier and more reputable trademark. The essential requisites which the law requires before affording its protection to the marks are discussed, and these prerequisites include the similarities between marks, the nature of the mark‟s reputation, and the link between the marks. The different types of damage which can be caused to a mark with a reputation will be discussed in the following chapters. This includes the notion of unfair advantage, detriment to the distinctive character by dilution or blurring, and detriment to repute by tarnishment. The additional protection provided by the 2015 amendments to the TMD shall also be highlighted.