Law School Outline- International IP

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Law School Outline- International IP Powered By Docstoc
					INTERNATIONAL INTELLECTUAL PROPERTY

PROFESSOR SILVIA FAERMAN

SOUTHWESTERN UNIVERSITY, SEPTEMBER 2004 TED FINAMORE, SCALE II

TABLE OF CONTENTS
I. A. 1 2. B. II. A. B. C. 1. 2. 3. 4. D. 1. 2. 3. 4. E. 1. 2. INTRODUCTION AREAS COVERED Trademarks Patents COURSE BASICS TRADEMARKS DEFINITION PURPOSE RATIONALE FOR TRADEMARK LAW Consumer protection against deception – Unfair competition – Promote investments in brand quality – Useful to both consumers and manufacturers CATEGORIES OF TRADEMARKS Generic Descriptive – Not Trademarks Unless They Acquire Secondary Meaning Suggestive Words Fanciful Words and Arbitrary Words PREVENTING TRADEMARKS FRM BECOMING GENERIC Educate the Public Educate the Client 2 2 2 2 2 2 2 2 2 2 2 2 2 3 3 3 3 4 4 4 4

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I.
A.

INTRODUCTION
Areas Covered
1 2. Trademarks Patents

B.

Course Basics

Only six classes. We will cover only International Intellectual Property

II. TRADEMARKS
A. B. C. Definition Purpose
Point Of Trademark Law – To Prevent Consumer Confusion And Protect Manufacturers

Rationale For Trademark Law
1. 2. 3. 4. Consumer protection against deception –
Only if consumers are likely to be confused do we conclude that there has been infringement.

Unfair competition –
Legitimate businesses that invest in their brand and product are hurt by trademark infringement.

Promote investments in brand quality –
More like traditional IP rationale; investment should not be dissipated to others.

Useful to both consumers and manufacturers

Should quality be regulated? Should the same standards be applied to a chocolate bar as to a car? Should the same standards be applied to a computer as to a car? Safety and Health issues are factors. Different consumer expectations. Pens are purchased by all types of consumers from children to adults, sophisticated and unsophisticated.

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So, professionals do not have as much need for protection as children. A child could be induced to buy a pen with fancy colors and packaging; but a professional would look at functionality and price. We need to assume that sophisticated consumers do a little research. So who needs more protection? The manufacturer of the simple device (pen) or the complex device such as an automobile? Manufacturers ensure quality and watch out for copycats with inferior quality: the market does a pretty good job of regulating itself. Except for Safety features in cars, pharmaceuticals, even food.

D.

Categories of Trademarks
1. Generic
Pen Chair Table Shoe Marker Etc. These are generic words and can never become trademarks. Because trademark gives manufacturer exclusive right to use that name. Generic words never become trademarks.

2.

Descriptive – Not Trademarks Unless They Acquire Secondary Meaning
in some way they describe the product but you can‟t say that the word is the generic term for the product itself (Example: Suave) – it describes the product (smooth, nice) … describing some characteristic of the product. In the US, descriptive products are not trademarks UNLESS: At some point in their life, the word becomes synonymous with the product (example: if Suave starts out as a descriptive but after years of ads and promotion, if at some point the consumers see this word and think only of the shampoo and conditioner because their last memory of the word is .. we way this word acquired SECONDARY MEANING no the word means shampoo and conditioner, not smooth and silky anymore. For the consumer, when she sees this would, she immediately remembers the shampoo – then this word becomes a trademark and can be registered as a trademark.

3.

Suggestive Words
These words evoke the product. They suggest what type of product you are looking at. They don‟t describe the product and they are not the generic words for the product. Examples:

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1. Amoxidal. It suggests that the product contains amoxlyn but is a trade name. You know you are buying an anti-biotic. 2. Kleenex may be a suggestive trademark; it suggests the purpose of cleaning but doesn‟t name it. 3. Windex. Suggests window cleaning but does not name.

4.

Fanciful Words and Arbitrary Words
a. Fanciful New words, invented by manufacturer. Never had any meaning before. Example: Exxon. Esso wanted a trademark that had no meaning in any language anywhere in the world. Arbitrary They have a common meaning in the language but that meaning has no connection with the product. Example: Crest toothpaste. Crest has a meaning but has nothing to do with toothpaste. Target: has a meaning; but has nothing to do with the retail chain.

b.

These four categories do not present any problem; they can always be trademarks. Because nobody can claim you‟re monopolizing something she needs to use to sell her own product. If a TM that started as a TM and becomes so strong that people start to use it as a generic word to name that product. What happens? Example: Thermos. It was a made-up word for the invention of a container designed to keep contents at a constant temperature. This word became so popular, would not know in general how to describe that product with another word. Everyone knows Thermos but no other word. In the U.S., Thermos corp. lost the trademark because it became generic. But in other countries, that can never happen as long as the TM holder continues to renew her trademark.

E.

Preventing Trademarks From Becoming Generic

So you have a client very successful selling products in the market and he is leader in the field. He has 60% - 70% of the market. Do you think there is a way you can warn him and propose some ideas to prevent the word from becoming generic.

1. 2. 3.

Educate the Public
Include generic name on the label. Advertise the fact that it‟s a TM

Educate the Client
Make sure that the client knows that he may lose his TM if he doesn‟t take positive steps to enforce.

Advise Client to Invest in Trademark Enforcement

F.

Dilution – Protection For Manufacturers

Dulce de Leche (Sweet of milk). Spread on food and eat. It is the national pride of Argentina. Invented in Argentina. Can Silvia take out a TM on dulce de leche?

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What is the difference between the TM “Mercedes Benz” and “Silvia”. Between “Silvia” and “McDonalds”? Silvia is not known at all. It means nothing to anyone. But those other trademarks mean a lot. Do you think that protection given to Silvia should be the same as that given to the others? NO. Why? Because the others are so widely known that they have acquired a secondary meaning. Can you open a coffee shop named Rolex? No, because it would dilute the trademark. We are protecting the manufacturer, not the consumer. Likelihood of Confusion was first reason for protection. Then it got broader and expanded to include dilution. What happens if others are allowed to use Rolex on other products? Blurring of the trademark.

1. 2.

Famous trademarks get more protection than other trademarks. What Can Be Trademarked?
   It can be a word or a symbol. Nike symbol because it comes from a unique source Color scheme on Marlboro box.

3.

Where Can TM be Enforced?
Can you enforce your TM internationally? Not if you do not have a market presence there? If you are in competition in that foreign market, then you have a right to TM enforcement.

4.

What Do You Need To Protect a TM Internationally?

Friday, September 24, 2004 Industrial property: patents, trademarks, registered marks Paris Convention 1883 Useful, but no definitions for patent, trademark. No time limits for how long a patent lasts. No information on what information is protected. So, it was a good meeting, but insufficient. Berne Convention 1886 Addressed to the protection of copyright. In Europe & Latin America, copyright is called “the right of the authors”. U.S. joined in 1989. U.S. doesn‟t like this agreement but had to agree in order to participate in TRIPS which imposes U.S. standards on other countries. So, it was a quid-pro-quo. TRIPS Agreement Trade related aspects of intellectual property rights.
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GATT General Agreement on Trade & Tariffs. Did not include any type of reference to IP rights. Because it was considered that IP rights had nothing to do with trade & tariffs. And because Paris and Berne were not sufficient for the U.S. and other developed (1st world) countries in the sense that IP rights were not highly protected in other countries, they decided that when then renegotiated GATT, the U.S. pushed to include IP rights in GATT. It was an extremely difficult 9 year agreement. Uruguay round of GATT lasted 9 years. Of course, there were other non-IP issues. But, this agreement, the IP agreement was strongly resisted by the developing and least developed countries. Major U.S. export is software and movies and music. Third world countries main exports are agricultural. They felt that this would create a worse trade imbalance for them. They lost. WTO was created (world trade organization). 150 members. U.S. is a member of all. The TRIPS agreement has a mechanism of enforcement. Any country that does not comply with the provision of the TRIPS agreement, the other countries have a remedy under the WTO to force the non complying country to comply. This is the big difference between Paris, Berne, and TRIPS. Paris and Berne had no enforcement provision. Political and economic reasons behind the enforcement and lenity shown to China. Paris Article I (p. 3) 1. This is a union to protect industrial property. 2. Defines industrial property Utility models are smaller inventions. Some countries protect, others don‟t. Patents are new, non-obvious, bigger inventions. Industrial Models – designs that add some new ornamental feature to a product. Example: design of a new chair. Can be protected as long as the new design feature is not functional. Example: design of new dishes and cups. They can be protected. Trademarks Servicemarks – trademark to identify the service that you render to your customers. Example: Keymart; repair shop Trade Names – the commercial name used by a person or entity. Porteńa – Prof. Faerman‟s trade name. Copyright not included in Paris. 3. Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries, mining, etc.

Article II

The Paris convention set 2 very important principles: Exam Alert

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1. National Treatement: The reaching of an agreement is to make it easier to do business and get protection in other countries. 2. Right of Priority: Example of National Treatment. Celu – nickname for Celeste. Suppose you design kitchens in Argentina and decide you want protection to sell them in the U.S. Article II tells us that because the U.S. and Argentina are both members of Paris, Celu will get the same protection in the U.S. as any other U.S. person or country. There cannot be any discrimination against foreigners. The same thing applies if you want to protect your trademark or patent, or utility model or industrial design in Argentina or any other member of Paris. As long as you comply with all aspects of the U.S. patent law (Lanham Act), then foreigners get same protection as Americans. 2. You are not required to move to the U.S. to get protection 3. The domestic law of the country in which protection is claimed will govern jurisdiction and procedure that are available 4. Countries can require other countries to appoint a representative or to designate an address where all identification summons will be performed and be valid. Because that would be a problem if someone in the U.S. has a problem with some Argentinian‟s trademark, believing it is infringement, he might want to file an opposition. So, how does he send notice of suit to Argentina? It may take too long. So, although you don‟t have to move to the U.S. you must provide an address (registered agent.) In the 1980‟s a Court was created in Washington DC which deals only with Patents and Trademarks. It is a COA.

Article III

Expands national treatement to more persons and companies. So, if a company or person is not a U.S. national, but is a permanent resident alien, it will be treated as a U.S. National. This is useful for persons who are nationals of countries that are not members of Paris. So, since they are residents of the U.S., they can claim Paris protection.

Article IV: Right of Priority

First in time, first in right. Whoever filed first gets protection. Paragraph C provides a 6 month priority period. So, if you invent something, you get a 6 month window to file your trademark in any other country that is a member of paris. Example: Daniel invents and files in U.S. on 9/24/04. Celeste files for the same thing in Italy in02/03/05. Daniel then files in Italy on 12/30/04. Daniel getst the priority on trademark because Celeste filed in the middle of his six month window.

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Purpose: It is impossible to file in all Paris countries at the same time. Also, you might need time to decide whether and where you want to file for protection. Industrial designs and trademarks gets 6 months. Patents and utility models get 12 months. U.S. uses first to invent for patents. Other countries use first to file. Always remember that the national treatment and right of priority don‟t guarantee that you will get the patent, TM, or Industrial Design. It only guarantees that you will get the same treatement as the nationals of the country in which you are seeking protection. Because, once you go to the country, you must comply with the local domestic law. But at least you will get the same treatement as the nationals.

Article 6, p. 10

1. Conditions for filing in each country are dependant on local law. 2. It does not matter that you did not register your TM is Argentina, that your application was refused in Argentina. It doesn‟t matter if you let your TM lapse. When you come to the U.S., and apply for the TM, provided your TM meets all the U.S. requirements of the Lanham Act, you shall get the registration. So, you can‟t be refused just because you were refused in another Country. Example: your TM Celu may mean somehting bad or pornographic in another country. Domestic legislation governs in each country.This is what they mean about independence of protection in each market. IN the U.S., my TM becomes generic and I lose it. But, in Argentina and France, my TM will never become generic, even if it did in reality. Because the law in Argentina and France don‟t allow TM‟s to become generic as long as it is renewed. So, it can be popularly generic but legally protected in Argentina and France. Cases Bayer Co. v. United Drug Co. (272 F. 505 1921) Learned Hand Bayer lost TM on “Aspirin” for sale to consumers but not to wholesalers. The 17 month period Bayer waited to enforce it‟s TM was too late. They slept on their rights. Started as a TM and ended up acquiring a secondary meaning and became generic. In the U.S., the TM owner loses his TM rights. Because in a market like this, the free market, if consumers think that this is the only name for the drug, they don‟t know it‟s a TM, and that it indicates the source of manufacture, if that happens, once the patent expires (end of production monopoly), everybody can start to manufacture the drug. They would be prevented from using the only word consumers recognize, so they would have no sales. Asa result, even though Bayer lost its legal monopoly, it could still have a defacto monopoly because consumers will buy aspirin and the competitors would not buy any other brand. And that is what th e Court is saying her. There are no alternatives for this name that the consumers will understand. We cannot extend the monopoly because it is over. The holding was somewhat Solomonic in allowing some users to enjoy the TM (wholesalers) and other not (sales to retail consumers). Client advise: spend some $ in retail promotions
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to publicize your TM among consumers. Always try to figure out what your client conduct will do to your legal position. Maybe your client will agree with your advice; maybe he wants your advice and chooses to ignore it. Marketing departments always hate legal because of IP conflicts. So, if you can give practical alternatives, you are a better lawyer. New Kids on the Block (9th Cir. 1992) Newspaper poll on who is sexiest band member. Kids lost because TM is limited right and they could not control how their fans spent their money. So, newspapers could refer to the band‟s name without infringing on the TM. The newspapers were not using New Kids to idenify their own products. They were using New Kids to talk about New Kids. They were not trying to mislead, just to talk about the band.

3 Prong Test to Determine Whether Use of TM is Fair Use:
1. 2. 3. Product or service in question must be one not readil identifiable without use of the trademark; only so much of the mark ormarks may be used as is resonably necessary to identify the product or service; the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the TM holder.

Example: Mechanic who specializes in repairing Volkswagens. How can he reach the consumers if he cannot use the VW TM? But, he can‟t insinuate that VW sponsors him. So, he puts on his sign, “I repair VW.” He is OK. But he can‟t use the official VW logo because that would lead consumers to believe that the shop is officially certified. The Court distinguishes this case from the Girl Scout case. P. 13. In both cases the Court found no TM case. But, in the Girl Scout case, no one could be misled by the poster b/c it was so contrary to their purpose that no one would believe it. P. 13 – not appropriating the cachet of one for another. But, the newspapers used a 900 number to make $ instead of a 800 number. So, the newspapers were really profiting from the New Kids TM. So, the opinion should not have said that they were not trying to capitalize on the cachet of the name. These polls are a big part of the newspaper business. They make even more $ when they print the story on the poll. Big companies threaten lawsuits and defend their TM‟s very aggressively. So, who would be crazy enough to take on Coca Cola? Coca Cola v. Gemini Rising (E.D.N.Y. 1972) Enjoy Cocaine Court agrees with Coke. User was suggesting endorsement or sponsorship by using the exact Coke logo. Probably no one really thought this was a Coke sponsored poster. But, the anti drug issue probably influenced the judges. It should have been framed as a free speech issue. It was mainly a political decision.

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The French Cellophane Case (FSR 1967) p. 25 Cellphane was a TM in the U.K. The Court of Nancy held correctly that periodic renewal of the registration is sufficient to prove the intention. You can go generic in the U.S. but not overseas. The strong argument might have been the Bayer argument: “Everybody calls this product „Cellophane‟”. It has become the generic word. But the patent had expired. The Court says that actually the TM had been registered before the patent became public. So the TM came first and it was renewed and kept using it as a TM. It doesn‟t matter what happened with the patent or that the patent expired because the TM was first. Every effort was taken by the TM holder to protect its TM. They had good lawyers telling them to always use the TM as a TM and to defend it aggressively. Friday, October 01, 2004

6bis – Well Known Marks

Members of the convention will cancel registration or prohibit use of a TM that may be confusingly similar to mark already protected and belonging to another person or country belonging to the convention; and that mark is considered in the country in which it is being used will take those measures. So, if the TM is famous in the UK and the US, and the TM was never sold in the UK and never registered in the UK, then the TM will be protected by convention. So if someone else tries to register or tries to register the TM, the competent British authority will deny or cancel the TM of the British national. Competent authority will do so because the US company files a petition or sua sponte if so authorized in that country. Competent authority varies by country: TM office, Courts of Law. No SOL if bad faith registration of TM. 5 year SOL if good faith. Paris convention Enacted by consensus First IP provision Many faults, not many useable sections The drafters knew the weaknesses, but could not reach consensus No definition of “famous mark” under 6bis. No length of protection under 6bis; how long the TM protection goes for. Since1883 (year Paris was concluded), famous mark needs to be protected; just no specific guidelines on how.

Article 10 – False Indications

Interested party is anyone in the region in which a product is manufactured or sold with false indication of the sourceof the goods or the identity of the producer, merchant, manufacturer.

Article 10bis – Unfair Competition

Acts devised to create confusion False allegations that discredit the competitor

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Misleading indications of quantity, suitability, or quantity of goods.

Caro Cuore Example
Famous lingerie sales campaign with models. Competitor Demibelle uses same model from Caro Cuore in their campaign which says “I now prefer this Demibelle” No TM infringement under 6bis because no use of the Caro Cuore TM But, the actions were contrary to the honest commercial practices and was designed to discredit the reputation of Caro Cuore. So, actionable under 10bis. Boca Jrs. and River Plate are the two main soccer teams in Argentina. So the model who posed in one uniform looking in the mirror and seeing herself in the other team‟s uniform. The Caro Cuore Court looked at this ad as proof that the national public were being mislead. It was a comment on the Caro Cuore-Demibelle controversy and the Court noticed it.

Comparative Advertising (“The Pepsi Challenge”)
Not allowed in Argentina and Europe. Pepsi lost to Coke b/c the Court said no comparative advertising allowed. Even though Pepsi did not mention Coke, there were only two main colas sold in that market so the public knew Pepsi was talking about Coke.

When to Use Unfair Competition
Unfair Competition is used when your client doesn‟t have a registration, but it‟s well known, your client has an invention but didn‟t patent it and someone who helped him on the project runs out and gets a patent; or where the other TM is not mentioned. Also, any time you don‟t have the specific elements of TM infringement. If you don‟t have the registration to get the specific action or remedy, you can resort to Unfair Competition as a catch-all.

TRIPS
Article I – Nature and Scope of Obligations
Members must abide by the agreement. This agreement is telling the member countries that these are the minimum standards of protection that all the countries need to apply. If a country falls below this level, it is non-compliant with TRIPS. But, a member country can give greater protection if it so desires. Example: TRIPS requires a minimum of 7 years of protection for TM registration. But many member countries provide 10 years of protection. That‟s OK, but anything lower than 7 years would be a violation. Member countries of TRIPS must comply with Paris.

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Article II- Intellectual Property Conventions
TRIPS integrates Paris; Paris is still valid and in force.

Article III – National Treatment

Member nations must treat foreign nationals with the same rights as its own citizens.

Article IV – Most Favoured Nation Status

If two member countries are involved, the stronger treatment applies. Example: The U.S. and the UK might have a special bilateral agreement with more protection than TRIPS. Then it‟s OK, as long as US and UK give that treatment to all member nations. No side deals within the member nations. Every country gets the same level of protection.

Article 15 – Protectable Subject Matter

Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. E.g., almost anything can be a trademark. Cmbinations of letters and numbers, colors, etc.

Secondary Meaning
No registration but the TM has acquired widespread recognition.

Member Discretion
Some countries will register a TM sound, such as the sound of starting a Harley. Other countries will deny TM protection to such sounds.

Dependence on Use
In U.S. before Lanham Act, the user of the TM needed to show that the TM had been used. In order to apply for the registration, he had to use the TM before the application for TM. But the Lanham Act was amended; so you can apply for TM before you start to use the TM. But, before you are issued the TM, you must use the TM. Use not needed for application but is needed for granting of TM.

Two Families of Countries regarding TM registration. (¶3)
Attributive System In Argentina, no right is acquired prior to granting of TM. The registration is the source of the right. Rights start the date that the TM office grants the registration. Declaratory System The TM office simply is declaring rights already acquired through use. With the use you acquired rights with the TM office declares legal and protected by granting your registration.
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Renewal on Use; Cancellation on Non-Use For 3 Years Countries may require use to renew the registration OR they may decide to cancel the TM rights if the TM is not used over a three year period. Opposition to Registration (¶5) TM‟s must be published so that parties can oppose registration.

Article 16 – Rights Conferred

¶1 Exclusive right to prevent all third parties not having the owner‟s consent from using in the course of trade identical or similar signs for goods or services which are identical orsimilar to those in respect of whch the TM is registered where such use would result in a likelihood of confusion. Can‟t use a TM if it will be confused with someone else‟s TM. If the TM‟s are identical, then confusion is presumed. If not identical, then owner must show confusion. ¶2 Article 6bis of Paris shall apply to services. In evaluation, use objective test based on relevant sector of the public. So, you can‟t say that the whole country must know about the TM to make it protected. Relevant sector will depend on the product. So, chocolate would need national recognition, because everyone likes chocolate. But electron microscopes have a much smaller relevant sector in the scientific community. Promotion of the TM is a factor that authorites must consider in evaluating a claim. Even if the TM has not been used, if it has been promoted in the market, the TM is probably famous in that country. ¶3 Dilution theory.

Taittinger SA and Others v. Allbev Ltd. And Another (U.K. 1993)
Misrepresentation can lie when confusion is likely and / or the misrepresentation is likely to dilute the TM or cause goodwill damage or other damages. Lower Court ruled that there was no proof of substantial damage because not that many people would mistake Elderflower Champagne for real Champagne. So, no damages. But, the COA looked to erosion or dilution of TM. Noting that Australia had specifically found erosion of the Champagne TM in a case there, the COA said dilution is likely substantially damaging. Champagne would lose its unique meaning. Reversed.

Article 22 – Protection of Geographical Indications

Yves St. Laurent perfume “Paris”. Could NOT get TM protection in Frances. Also, cheeses named after regions. Parma Ham from Italy. Small locality in Ohio is also named Parma. So, someone in Parma, Ohio could try to sell “Parma Ham”. But that would be unfair to consumers and to the Parma, Italy Ham company. So, TRIPS says you can use the name of the region, but you must make it clear that you

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are not talking about the famous region or city. Also, can‟t say “Champagne type” or in any other way use the name of the region to market your product.

Article 23 – Additional Protection for Geographical Indications for Wine & Spirits

Nobody can call their wine Champagne unless they have the grapes from that specific region of France AND made with the same ancient method that the French use. Strong protection.

Duff Beer Case

(Australia 1996)

Words of ordinary dictionary meaning may acquire TM of a particular trader. Words that acquire a secondary meaning can also acquire TM status even if there is a dictionary meaning. The test is whether the word conveys secondary meaning to consumers. Australian brewery tries to capitalize on “The Simpsons” popularity by marketing Duff beer. Even though “duff” has a dictionary meaning, it also had a secondary meaning because of the widespread popularity of “The Simpsons.” So, Fox was damaged by loss of revenue on the Duff beer and also reputational damage because Fox never licenses its products for use in the sale of alcohol or tobacco. Only one reason why someone would sell a beer named “Duff” – to capitalize on “The Simpsons.”

The Bud-Var Case

(U.K. 1998)

Two holders of a common TM. Cannot limit use of the TM. Priority of TM rights was not decided. The one company constantly pushing the issue was the American Company. So, why didn‟t the Czech company try to defend their rights? So, who has the greater rights in the U.K.? Court didn‟t say. The Czechs may have been content to let the American company spend lots of money promoting the brand.

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