Protection of trademarks
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Trademark Law Traty (TLT, 1994, 25 States), however, the provisions of the Paris Convention relating to trademarks were extended to service marks.
2. The protection extends to registration or use in respect of identical or similar goods (in accordance with the principle, known as the "principle of speciality", under which protection for a trademark extends only to the same or similar goods as are covered by the registration or use of the trademark);may be said that the provision in Article 6bis addressing the protection of well-known trademarks is a provision of exception to the general rule that conditions trademarks protection for use or registration. The owner of a trademark which is not used or registered in the country where protection is sought by a third party may still obtain protection for the mark, provided the requirements of Article 6bis (1) are met, namely that the mark is well-known in the country where protection is sought.shows that trademark owners who have failed to register a trademark in a country where protection is granted only by local registration - as is the case in most countries of the world - often try to rely on Article 6bis in an attempt to remedy their failure to registrer. Clearly this was not the intention of the drafters of the Article. Whether as a provision of exception or as a different source of rights, the fact is that only those well-known but unregistered trademarks in the country where protection is sought have access to the privileged protection afforded by Article 6bis., whether as a provision of exception or a different source of rights, the party that may benefit from the privileged protection afforded to well-known trademarks by Article 6bis may not benefit from all the rights given to registrants under national laws, but only those specifically contemplated in the Convention, namely:
the right to have local authorities refuse registration to an unauthorized third party;
the right to move for the cancellation of then mark registered by an unauthorized third party;
the right to move for the prohibition of use of the mark by an unauthorized third party.is provided, in all cases, that the legal proceedings instituded by the owner of the well-known trademark attack the unauthorized use or registration by a third party in relation to identical or similar goods.term "well-known trademark" as used in Article 6bis extends to situations involing:
a reproduction of the mark liable to create confusion;
an imitation of the mark liable to create confusaion;
a translation of the mark liable to create confusion.text of Article 6bis makes it clear that the protection afforded by its first paragraph extends to:
situations where the essential part of the mark constututes an unauthorized reproductuion "of any such well-known mark" liable to create confusion;
situations where the essential part of the mark constitutes an unauthorized imitation "of any such well-known mark" liable to create confusion.that there are reasons favouring the notion that Article 6bis is a provision of exception that should be interpreted in a restrictive way, practise, cases, law and the contributions of legal commentators have consistently shown that there is substantial room for argument, discussion, interpretation and speculation in the text of this provision.
3. Article 6bis is silent on what constitutes a well-known mark. The appreciation of whether a mark is well-known is left to the "competent authority of the country where the illegitimate registration or use occurs".6bis does not define a well-known mark, it only enjoins the Member States of the Paris Union for the Protection of Industrial Property not to grant protection to any mark which the relevant authorities consider to be in conflict with a well-known mark belonging to someone else. Unfortunately, the Article fails to define what exactly one should understand by the term "well-known"; it does not extend this protection to services or to goods that are not similar, and it is silent on the question of whether the well-known marks should have been used in the country where protection is being sought.the first recognition of the concept of a well-known mark is embodied in Article 6bis, the Paris Convention does not provide any definitions or criteria for establishing which trademarks qualify as well-known marks.better view seems to be one that focuses on the universal term provided in Article 6bis of the Paris Convention of a well-known mark: "mark notoirement connue", "notorisch bekannte Marke", "marchio notoriamente conosciuto" o "marca notoriamente conocida".
4. Article 6bis is of major importance for cases where a trademark in a given country does not - or does not yet - enjoy protection on the basis of a registration in that country or on the basis of an international or regional registration having effect in that country.does not mean that the application of Article 6bis is excluded if the trademark is registered in the country where the protection is sought. However, protection according to Article 6bis does not go beyond what normally is conferred by registration of a trademark, namely, protection against the registration or use of the same or a similar sign for the same or similar goods. Thus, if the trademark is normally registered in the country, there is no need to invoke Article 6bis.
5. As to the activities that may be attacked by the owner of a well-known trademark, the Conventon is not explicit with respect to situations where an unauthorized third party adopts the well-known mark as a part of a corporate name.all these situations, case law shows different ways to construe Article 6bis. In some caees, local authorities have interpreted it in strict terms, whilst others have been more flexible, affording protection to owners in circumstances not expressly contemplated in Article 6bis. Case law also provides examples of owners obtaining protection under a combination of Article 6bis and Article 10bis, governing unfair competition, or under the provisions of Article 10bis alone. Finally, Article 6bis does not address the issue of the criteria that should be used in the determination of whether or not a trademark is well-known.appears that in drafting provisions of new international treaties, legislators did not merely reproduce Article 6bis but have indeed incorporated these situations. It is arguable, therefore, that the text of Article 6bis is due for an update.
6. Article 6bis of the Paris Convention provides protection for marks which are well-known in the country in which protection is sought. Article 6bis is therefore of particolar importance in cases where a well-known mark is not registered in a given country, so that protection must be predicated on the fact that the mark is well-known.to the weight of authority, a mark must be well-known in the country in which protection is sought in order for it to enjoy the benefit of Article 6bis of the Paris Convention. It is not sufficient that the mark be well-known only in the country of origin or elsewhere; it must in fact also be well-known in the country where the protection is sought.a mark has been recognised as being well-known by applying the relevant criteria and parameters, Article 6bis of the Paris Convention provides for protection as follows. The owner of a well-known mark is entitled to request that with respect to a mark which is "liable to create confusion" with the well-known mark, an application be refused or a registraton be canceled (at the registry) or the use be prohibited (by injunctive relief in court). Protection is granted against the "reproduction" or "imitation" of the well-known mark with respect to "identical or similar goods".countries have incorporated these protection standards into national law. Accordingly, where applicable, the likelihood-of-confusion-standard will be aplicable within the framework of local law in order to determine whether an infringement of a well-known mark is present.
7. Although "famous" is not a word employed in the Paris Convention, it is a term which recurs in discussions relating to the extent of protection which the law should accord to trade marks which are merely known, well known or truly famous.terminology of "famous" and "well-known" marks is unhelpfully imprecise.6bis of the Paris Convention sought to protect "well-known"marks against the use by others of those marks on identical or similar goods. In contrast, the original dilution doctrine propounded by Frank Schechter sought to protect trade marks against the use by others of those marks on non-related goods.do the two major pieces of European trade mark law implement Article 6bis of the Paris Convention? Although the final recital to the Preamble of Directive 89/104 confirms that the Directives provisions are "entirely consistent" with the Paris Convention, its English text contains scarcely a mention of the words "well known" in relation to trade marks. The registration of anothers "well-known" mark is a ground upon which a trade mark application can be refused, or registration invalidated, but the rights conferred against infringers are egalitarian in their nature and treat all used trade marks in a similar manner, protecting them by virtue of their reputation even if they are not well known.approach taken by the CTM Regulation corresp