Trademark Use Requirement: Theoretical and Practical Problems

Danguolė Klimkevičiūtė

Abstract


The article deals with the topical and problematical issues, related to the one of the requirements for a trademark, i.e. trademark use requirement, as the condition for the maintenance of trademark registration. The first part of the article provides analysis of the main provisions anticipated in international European Union and national Lithuanian legal regulation related to the trademark use requirement. First of all, it is important to provide analysis of the relevant date, when the trademark use requirement can be raised, as well as the rules for ascertaining that date. The second part of the article analyses the main rules and problems regarding the consideration of the fact of trademark use, the image of the trademark which is actually used as well as the goods and (or) services for which the trademark is used in practice, from the viewpoint of the trademark use requirement. The article concludes that the trademark use requirement as a condition for the maintenance of the trademark registration and the trademark use requirement from the outlook of genuine use, is concurrent with the evaluation of a trademark as the tool for competition. Namely, all the issues associated with the trademark use must be considered from that (competition) perspective. The article discusses that application of too strict as well as too liberal standards in assessing the trademark registration cancellation because of non-use, this could distort the competitive intercourse and the natural market processes. However, the article makes the distinction that, differently from the evaluation of the fact of a trademark use, considering whether the image of a trademark, which is actually used, could be acknowledged as a trademark (as registered) use, as well as “partial” trademark use (i. e. only for some goods and (or) services) has to be interpreted narrowly. Generally speaking, trademark registration, which is one of the main principles of trademark protection, defines the boundaries of trademark protection (what trademark and for what goods and (or) services is protected). Actually, practically used trademarks, different from those that are just registered, should be an exception rather than a rule. From the viewpoint of the requirement of trademark use, only minimal deviations from the registered image of a trademark could be allowed. This rule has also to be applied in consideration of “partial” trademark use. Generally, non-use of a trademark for some goods and (or) services, indicated in the registration, would have to destine the cancellation of the trademark registration for those goods and (or) services. An exception from that rule can be instances where the goods (services) for which a trademark is practically (actually) used (or non-used) can be attributed to the same category (subcategory) without an exhaustive analysis.

Keywords


trademark; trademark use requirement; trademark registration; trademark image; goods and (or) services for which a trademark has been registered

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"Societal studies" ISSN online 2029-2244 / ISSN print 2029-2236