Trade marks, appellation of origin
The marking of products has a long tradition. In Middle-Ages manufacturers designated their products with special marks. They tried to inform customers about the fact, who had produced the respective product, to draw their attention and to ensure the market. The development of the industrial production and business resulted in a definitive high tide of product marking and certified the necessity of their existence as needed means for distinguishing products, for reinforcing the manufacturers position in the market and for protecting the customer.
Three kinds of marking are used for marking products:
Trade names are the mostly used method for marking products,
viz. as the marking usable in a very large scope. It may be
placed on any product or packing, in advertising materials,
on commercials papers, in any dimensions, shapes, graphic
arrangements, in coloured or black and white embodiment. The
registrant of the trade mark should take into consideration,
at its forming, not only said advantages, but effect of the
trade mark onto customers as well, and he/it should form a
trade mark which would enter into the knowledge of the
customer as an easily rememberable and pronounceable word
and concept (even in foreign languages) and affecting
favourably the public.
The Trade Mark Act specifies in details markings which are excluded to be registered in the Trade Mark Register either absolutely or at least conditionally.
The absolute impediments preventing the trade mark from being registered are as follows:
Relative impediments preventing the trade mark from registration:
Said relative impediments can be overcome under certain circumstances and one can get the registration even of such a trade mark which would be otherwise excluded from the registration. The following markings are excluded for registration conditionally:
As undistinguishable markings there are considered markings formed from mere letters, ciphers, marks, simple geometric figures, straight lines, lines, spots, or markings comprising geographical data or words taken from the general vocabulary and being commonly used in various spheres of human activity.
Proceedings on a trade mark application are started by filing the application of the trade mark at the Industrial Property Office. The application may be filed by a legal person or natural one, which(who) carries out a permitted economic activity, viz. for products or services which are included in its(his) sphere of business.
By filing the application, the registrant gets the priority right (priority), it means that the registrant has the priority right against anybody who files the application of an identical or mistakable trade mark for products or services of the same sort later.
The trade mark application must, more over, include an exact specification of products and services, for which the trade name is to be registered. The list of products and services must comply with the permitted economic activity of the registrant.
If the trade mark application comprises all needed requisites and if the applied marking is not rejected on the basis of the absolute exclusions, then the Office makes public the application in the Bulletin, and within three months from the day of making public it is possible to lodge objections against the registration of this trade mark, which is so called objection proceedings. In this way it is possible to prevent effectively such a trade mark from registration, which might interfere in rights of other persons. The law names enumeratively seven groups of persons authorized to lodge objections.
Objections against registration of a trade mark may be lodged by:
If the objection is not lodged within the legal term, the Office shall register the trade mark, even if it is mistakable with another trade mark or trade name. The term for lodging objections by an authorized person cannot be prolonged.
The registration of the trade mark in the Register is performed, if absolute or relative impediments do not prevent the trade mark from being registered in the Register. By registering the trade mark into the Register, the registrant becomes the owner of the trade mark and from that moment he (it) gets the basic and exclusive right to mark his (its) products or rendered services with said trade mark. Together with its verbal, pictoral or combined expression, he (it) is entitled to use even the internationally acknowledged mark ®.
By utilizing the trade mark in connection with the goods to which one provides the protection, it is also understood, for the trade mark on packings, trade papers, in advertising, business correspondence, and the like, to be used. The owner of the trade mark is also entitled to provide the information on origin of products of other persons, if on them a marking identical or mistakable with his(its) trade mark is situated. The reason of this legal rule is to protect the owner of an industrial right against so called transformation of his (its) trade mark into a sort characteristics.
From the basic right there are derived further subjective rights. We can include in them also the right of the trade mark owner to demand the customs office not to pass into free circulation goods of the business character interfering his(its) trade mark rights. Said right may be exercised only against the person-enterprise interfering the rights, but not against the customer of the product or user of the service.
The owner of the trade mark may transfer its right to the trade mark fully or partially, by means of a written contract onto a legal person or physical one, which is qualified, in the meaning of the law, to be an owner of the trade mark (i.e. he/it performs a permitted economic activity, viz. for products and services for which the trade mark beiing transfered, has been registered). The transfer becomes effective on the day of entry into the Trade Mark Register.
The owner of the trade mark is entitled, due to his (its) exclusive right, to dispose of the trade mark, to provide the right to its temporary utilization by means of a licence contract. Relations between the provider and the acquirer of the licence are subject to provisions of the Commercial Code. Only such a natural or legal person may be the acquirer of the licence, into the sphere of business of whom (which) the products or services, protected by the licensed trade mark, belong. The contract must be concluded in writing and it is effective from its registration into the Register of Trade Marks.
To the rights of the trade mark owner there belongs even the possibility to ask the Office for cancelling the entry of the mistakably similar trade mark which the Office registered for another owner later.
Nobody is allowed, without the owner s approval to utilize the trade mark or marking identical with it or mistakable for products or services of the same sort for which it is registered, or to use it in connection with said products or services. As far as such a handling is found out, the owner of the trade mark may demand that the interference in his (its) rights may be forbidden, the defective situation removed and the damage compensated. He(it) is entitled to be compensated not only for the material damage, but also for the immaterial one (e.g. damaging of the good reputation of his(its) trade mark or trade name of his/its firm).
Among obligations of the owner of the trade mark there belongs, first of all, the obligation to utilize the trade mark, viz. in the form, in which it has been registered in the Register. By a utilization it is meant to apply the trade marks especially on products and packings, on business papers, in advertising materials. The owner (eventually contractual utilizers) is (are) obliged to preserve, in his (its) own interest, documents concerning the utilization of the trade mark. If the owner does not utilize the trade mark without a serious reason, or if he(it) is not able to prove the utilization for the period of five years, the Office, after having expired said period, may cancel the entry. Usually it is done after an application of another person interested in this trade mark was filed.
It is important, for the owner of the trade mark, to realize that if his (its) legal subjectivity becomes extinct, and the right to the trade mark was not transferred or did not pass onto a new owner in due time, the trade mark becomes extinct.
A trade mark well designed, registered and utilized for a long time, represents for its owner a real treasure. Owners of such trade marks appreciate the trade mark value usually higher than there is the price of the material property of the owner. As to many products, the trade mark influences considerably their price. Goods provided with a good trade mark is also better marketable than goods without marks. Frequent misuses of known and popular trade marks certify said fact.
APPELLATION OF ORIGIN
The protection of the appellation of origin of products is one of the oldest categories of the industrial property. The appellation of origin, in the meaning of the law, is a geographical name of a country, region or place which became generally known as an information about the place, where the origin of the product takes place, the quality or features result exclusively or considerably from the geographical environment, including natural and human factors. Besides industrial products and trade ones, even agricultural or natural products may be protected by means of the appellation of origin.
The appellation of origin may form either a mere geographical indication or an objective combination of said indication with the sort name of the product or a combination of the geographical indication with a phantasy indication.
The registered appellation of origin may be used only by the registered utilizer and it is not possible to grant a licence for it. Unlike e.g. the patented invention or registered trade mark, which have only one owner or (as to an invention) several co-owners, there may exist more owners of the appellation of origin. Everybody asks for the entry into the Register independently and must comply with certain terms and conditions. The exclusivity of the right to the appellation of origin does not relate to the person of its utilization, but to the place, where this product has its origin. Any person who(which) produces the product in the respective region, and if said product has properties characteristic for the respective appellation of origin, may be its user.
The registered indication of origin must not be misused by anybody, especially nobody must take possession of it or imitate it, even if the original origin is indicated or if the marking is used in a translated form or in a different form, as far as, in spite of the difference, there exists the danger of mistakability, or even if it is accompanied by expressions such as "sort, type, kind, imitation" and the like.
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