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My Course series
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OBJECTIVE



  • Present Section 2 of Part II of the TRIPS Agreement on trademarks.


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I.Introduction

I.A.General


The purpose of this Module is to help you understand the provisions of Section 2 of Part II of the TRIPS Agreement entitled "Trademarks". This section contains 7 articles, from Article 15 to Article 21, and deals with the protection that Members have to make available for trademarks.

You have to read this section, like other sections in Part II of the TRIPS Agreement that cover standards of intellectual property rights, together with the relevant provisions of pre-existing treaties in the area of international intellectual property law which are incorporated by reference into the TRIPS Agreement. In the case of trademarks, the relevant treaty is the Paris Convention. The relationship between the TRIPS Agreement and the Paris Conventions is explained below.

You will also have to read this Module in conjunction with other relevant provisions of the TRIPS Agreement.

IMPORTANT NOTE:

The TRIPS Agreement stipulates the minimum level of protection that Members have to provide to nationals from other Members. In other words, they determine the obligations that Members have vis-à-vis each other. Given the long history of international cooperation on intellectual property matters, the national laws in this area are often fairly similar. However, to answer any question you may have on how the law applies in any practical situation, you will have to consult the applicable national law.


I.B.What are Trademarks?


A trademark is a sign or a combination of signs which is used to distinguish the goods or services of one enterprise from those of another.

A trademark provides protection to the owner of the mark by ensuring the exclusive right to use it in the marketplace to identify certain goods or services, or to authorize another to use it in return for payment. The trademark system thus serves to protect producers from unfair competition from other producers seeking to free ride on the goodwill earned by the trademark owner. By reserving use exclusively to the trademark owner, trademark protection also facilitates consumer's choices when purchasing certain products or using certain services, as such choices can rely on trademarks to indicate the source company and distinguish the product from similar goods that are produced by different enterprises. Trademarks therefore help consumers to reliably identify and purchase a product or service which they prefer because of its nature, quality or other characteristic that consumers have come to expect on the basis of previous purchases or advertising. Thus, trademarks protect an undertaking's goodwill, as well as the consumers against confusion and deceptive practices. While the registration of service marks was optional under the Paris Convention, it has become obligatory under the TRIPS Agreement. Where the provisions on trademarks apply equally to marks identifying goods and services in this Module, the term "products" will be used as denoting both goods and services.

In general, trademarks are registered and protected with respect to certain products, which are described in detail in the trademark registration (e.g. "FedEx" for document delivery services, "Toyota" for automobiles and related services and "Samsung" for consumer electronics). It is generally only with respect to such or similar products that the owner enjoys the exclusive right of use of his registered trademark.

While trademarks are typically acquired by the registration of a sign as a trademark, some countries make trademark rights available without registration simply on the basis of use. These unregistered trademarks acquired through use are in some jurisdictions referred to as common law trademarks. While, except for well-known marks, the TRIPS Agreement only obliges Members to accord rights to the owner of registered trademarks, it explicitly recognizes in Article 16.1 Members' ability to make trademark rights available without registration on the basis of use.

Trademarks are territorial rights which means that they are valid only in the country where they have been registered or otherwise acquired. In order to protect a trademark in different countries, therefore, the mark needs to be registered in each individual country. A number of international treaties dealing with aspects of national and international registration have been concluded under the auspices of the World Intellectual Property Organization (WIPO). See Note 1 for more details.


I.C.What is the Relationship of the TRIPS Agreement with the Pre-existing Provisions of the Paris Convention?


During the Uruguay Round negotiations it was recognized that, for the most part, the Paris Convention already provided important basic standards of industrial property protection. It was therefore agreed that the point of departure should be the existing standards under the latest Act, the Stockholm Act of 1967, of that Convention. This consideration is expressed in TRIPS Article 2, which stipulates that Members are obliged to comply with the substantive provisions, i.e. Articles 1 through 12, and Article 19 of the Paris Convention (1967) and that nothing in Parts I to IV of the TRIPS Agreement shall derogate from existing obligations thereunder.

However, as regards trademarks, the Paris Convention was silent on a number of key aspects of protection. Accordingly, the trademark section of the TRIPS Agreement contains a comprehensive definition of trademarks and a description of the rights conferred by registered trademarks, as well as other provisions on limitations and the term of protection. The TRIPS Agreement also adds some significant substantive provisions regarding service marks and the protection of well-known marks. These provisions to some extend codify and concretise jurisprudence and general practice that had already been developed under the Paris Convention and the relevant national laws.



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