Critically assess the harmonisation of Trade Mark in European Union.
Résumé de l'exposé
Since it has been created in 1993,the European Union (former European Community created in 1957), which is composed of twenty five members, has always try to find the best ways to coordinate the laws which govern the whole of each member states; with a view to allowing a best policy of friendship between the members. This attempt of harmonisation is applying to different areas, such as economic, social, and cultural In my course work I would like to analyse more exactly how the European Union (EU) tries to harmonisation the Intellectual Property laws (IP), in particular Trade marks (TMs), which is one of the principal domains of the IP law. To resolve this issue, I will briefly explain the reason why the European Court of Justice (ECJ) has had to reconcile free movement and IP and then explain the process of harmonisation. In Centrafarm v Winthrop , Winthrop, a company brought injunction proceedings before the Court of justice of Rotterdam against Centrafarm. It claimed that Centrafarm had infringed its rights by marketing in Holland a product, which did not originate from Winthrop itself. And before taking decision the Court requested the ECJ to give a ruling on the interpretation of the rules of the European Economic Community Treaty relating to free movement of goods. Then the Court decided that Centrafarm had infringed Winthrop's exclusive rights by dealing in similar products bearing the Trade Mark.
Sommaire de l'exposé
I. The reason why the European Court of Justice (ECJ) has had to reconcile free movement and IP
II. The process of harmonisation
Extraits de l'exposé
[...] But with the establishment of the TM Act 1994, it became possible. Because of the change of relation between states in Europe a Treaty came into force in 1958, in order to establishing the European Economic Community .Its included the establishment of free movement of persons, goods and services, and capital. This involved the elimination of customs duties, the imposition of common tariffs and the establishment of procedure to allow coordination of the economics policies; that means that the national markets have been combined in only one market without internal frontiers, known as the Common Market. [...]
[...] In the case of contestation, each citizen of the Community can bring an appeal to the Board of Appeal of the Office (OHIM), and decisions of this Board can bring cases before the Court of Justice of the European Community, which jurisdiction to annul or alter the contested decision. Consequently to the Council Regulation (directly) and the Directive (secondly), the Community Trade mark came into effect. The OHIM, established by this Regulation commenced to accept applications on 1 January 1996. Only marks, which can have equal effect through the Community, will be accepted. [...]
[...] The Community Trade Mark law is similar to laws of Trade Marks but with some changes. The arguments for refusing a Trade Marks to be registered are the same as in the 1994 Act; in the question of distinctiveness some words might be used for marks and could be distinctive in one European state and not in another. In Procter and Gamble Procter v OHIM knows as Baby-Dry) Procter and Gamble filed an application with the OHIM for registration Baby-Dry as a Community Trade Marks. [...]
[...] As a result of the difficulties of different laws the Directive said that it was necessary to create a flow of reliable homogenous laws, which could govern the European Common Market, but only to approximate the laws, which must directly affect the functioning of the internal market. Member States remained free to fix the provisions of procedure concerning the registration, the revocation and the validity of trade marks acquired by registration. The Directive principally harmonised the substantive law in particular by harmonising the definition of a TM at national level. Then the definition of TM is the same definition as the Regulation. [...]
[...] The applicant sought to register as a Benelux Trade Mark the word mark WECOVER for insurance services. The Benelux Trade Mark office refused for the reason that it was devoid of distinctive character for the services in question, it consisted in two well-understood English words and which described the activity. The application was refused and the applicant appealed on the basis that the office had not given adequate grounds for it reasoning and won. Defences are also the same as those of the TM Act 1994, but infringement is to be determined by the application of national law. [...]
À propos de l'auteur
DULAC L.RHPropriété intellectuelleCritically assess the harmonisation of Trade Mark in European Union.