NDLI: Not Prior in Time, But Superior in Right – How Trademark Registrations Can be Affected by Third-Party Interests in a Sign

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“Glivec” : Patents Act, 1970, Secs. 2(1)(j) and (ja) and 3(d) – Novartis AG, Natco Pharma Ltd. and M/S Cancer Patients Aid Association v. Union of India and Others

“AMP v. Myriad” : Patent Act, 35 U.S.C. §§ 101, 154(a)(1) – Association for Molecular Pathology et al. v. Myriad Genetics, Inc. et al.

“Actavis” : Federal Trade Commission Act, § 5, 15 U.S.C. § 45 – Federal Trade Commission v. Actavis

“Ediciones de la Flor v. Fontanarrosa Franco” : Copyright Act, No. 11.723; Constitution of Argentina, Art. 75, subparagraph 22; American Convention on Human Rights “Pact of San Jose”, Art. 21; International Covenant on Economic, Social and Cultural Rights, Art. 15 – Ediciones de la Flor SA v. Fontanarrosa Franco

Comment on “Ediciones de la Flor v. Fontanarrosa Franco” : Copyright Act, No. 11.723; Constitution of Argentina, Art. 75, subparagraph 22; American Convention on Human Rights “Pact of San Jose”, Art. 21; International Covenant on Economic, Social and Cultural Rights, Art. 15 – Ediciones de la Flor SA v. Fontanarrosa Franco

“ABC News” : Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, Art. 5(2) – M.X. v. ABC News

Comment on “ABC News” : Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, Art. 5(2) – M.X. v. ABC News

“ONEL/OMEL” : Council Regulation (EC) No. 207/2009 of 26 February 2009 on the Community Trade Mark, Art. 15(1) – Leno Merken BV v. Hagelkruis Beheer BV

“F.C.I.” : Council Regulation (EC) No. 207/2009 of 26 February 2009 on the Community Trade Mark, Art. 9(1) – Fédération Cynologique Internationale v. Federación Caninca Internacional de Perros de Pura Raza

“Textile Label” (Stofffähnchen) : Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community Trade Mark, Art. 15(1) – Colloseum Holding AG v. Levi Strauss & Co.

“Barilla” : Treaty on the Functioning of the European Union, Art. 34; Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community Trade Mark, Arts. 9(1) second sentence, (a), 13(2); Act Against Unfair Competition, Sec. 4 No. 11; Food Labelling Regulation, Secs. 3(1) Nos. 3 and 4, and (3), 7(2); Nutritional Labelling Regulation, Sec. 5(7); Foodstuffs, Essential Commodities and Animal Feed Code, Secs. 53(1) first sentence, 54(1) first sentence No. 1 and second sentence No. 2

R. Ian McEwin (ed) (2011): Intellectual Property, Competition Law and Economics in Asia

IIC - International Review of Intellectual Property and Competition Law : Volume 44, Issue 6, September 2013

IIC - International Review of Intellectual Property and Competition Law : Volume 44, Issue 5, August 2013

IIC - International Review of Intellectual Property and Competition Law : Volume 44, Issue 4, June 2013

IIC - International Review of Intellectual Property and Competition Law : Volume 44, Issue 3, May 2013

IIC - International Review of Intellectual Property and Competition Law : Volume 44, Issue 2, March 2013

IIC - International Review of Intellectual Property and Competition Law : Volume 44, Issue 1, February 2013

Not Prior in Time, But Superior in Right – How Trademark Registrations Can be Affected by Third-Party Interests in a Sign

Content Provider	Springer Nature Link
Author	Kur, Annette
Copyright Year	2013
Abstract	Trademark law relies on the principle of priority: the person first filing for registration (or, depending on the legal system, the person first using a sign) becomes the owner of the right within the territory where the filing (or use) takes place. However, in certain exceptional cases priority is discarded due to superior interests of third parties. International law explicitly recognises two such constellations, namely, protection of well-known marks (Art. 6$^{bis}$ Paris Convention) and unauthorised registration by an agent or representative (6$^{septies}$ Paris Convention). Furthermore, it is widely acknowledged that the priority principle may not apply if a mark is filed in bad faith. The article presents all three constellations from an international and European legal perspective, including a discussion of the Commission proposals for reform of European trademark law. It is argued that while the current law as well as the proposals go beyond what is necessary to comply with international obligations in regard to Art. 6$^{septies}$ and application in bad faith, they do not live up to the required level when it comes to well-known marks. Nevertheless, in spite of certain deficiencies, it is also shown that European trademark law in its current state as well as in view of the envisaged reform proposals presents a fairly comprehensive panoply of options for protection of superior interests in a sign in spite of lacking registration.
Starting Page	790
Ending Page	814
Page Count	25
File Format	PDF
ISSN	00189855
Journal	IIC - International Review of Intellectual Property and Competition Law
Volume Number	44
Issue Number	7
e-ISSN	21950237
Language	English
Publisher	Springer Berlin Heidelberg
Publisher Date	2013-10-03
Publisher Place	Berlin, Heidelberg
Access Restriction	One Nation One Subscription (ONOS)
Subject Keyword	Filing of marks in bad faith Well-known marks European trademark law reform International IT and Media Law, Intellectual Property Law Registration by an agent Unregistered marks
Content Type	Text
Resource Type	Article
Subject	Political Science and International Relations Law

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