Is a National Court Competent to Introduce a Disclaimer into a Trade Mark Registration? The Latvian Supreme Court Finally Says ‘No’

2021 ◽  
Author(s):  
Jānis Rozenfelds ◽  
Vadim Mantrov
Keyword(s):  
Supreme Court ◽  
National Court ◽  
Trade Mark ◽  
Patent Office ◽  
National Courts ◽  
Trade Mark Law ◽  
Trade Mark Registration ◽  
Court Practice

Abstract It was a longstanding practice of Latvian courts to acknowledge their competence to introduce a disclaimer into a challenged trade mark registration. This had come to be considered as settled court practice. However, the Latvian Supreme Court recently decided to withdraw this practice and explicitly admitted a change of approach concerning the competence of Latvian national courts to introduce a disclaimer into a trade mark registration. In this way, the Latvian Supreme Court finally abolished a disputable practice in the Latvian courts, having formerly allowed themselves to introduce a disclaimer which could – by way of a misunderstanding of trade mark law – be introduced by a court in addition to a trade mark applicant and the Patent Office. The consequences of this Latvian case have led to the situation that only a trade mark applicant may – either on their own initiative or following a request from the Patent Office – introduce a disclaimer into a trade mark registration. This opinion discusses the situation which existed before the Latvian Supreme Court judgment in question and its consequences.

Introduction

2016 ◽  
Author(s):  
Alexander Mühlendahl ◽  
Dimitris Botis ◽  
Spyros Maniatis ◽  
Imogen Wiseman
Keyword(s):  
Trade Mark ◽  
National Courts ◽  
Court Of Justice ◽  
Harmonization Process ◽  
Trade Mark Law ◽  
National Systems

Trade mark law has been growing rapidly in Europe during the last twenty years as a result of the harmonization process and the introduction of the Community trade mark system. Until the introduction of the new European regime, national schemes of protection had been developed following contradictory models, ranging from pure deposit systems to registries that wished to protect consumers and competitors first and trade mark owners second. At the same time national courts had been applying their own distinct and often disparate trade mark law doctrines, whereas for the Court of Justice trade mark rights were primarily potential anti-​competitive tools and barriers to intra-​Community trade. From the early 1990s onwards, the new European regime has changed all that. National laws have had to adapt to following the same substantive principles and national systems to coexist with a new, and truly federal, competing system of protection.

scholarly journals Paying the Price for Admission

2018 ◽  
pp. 59-88
Author(s):  
Dev S. Gangjee
Keyword(s):  
Trade Mark ◽  
Patent Law ◽  
Trademark Law ◽  
Relevant Today ◽  
Trade Mark Law ◽  
Color Spectrum ◽  
Prosecution History Estoppel ◽  
Trade Mark Registration

This chapter makes the case for joined-up thinking when approaching non-traditional signs in trade mark law. Trade mark registration has moved from up-front exclusions for certain categories of signs (no shapes, no colours) toward incremental acceptance. However the policy concerns generated by the grant of legal monopolies in such signs remain equally relevant today. The grant of an abstract color mark to one trader closes off a part of the color spectrum to others. Can we therefore allow such signs in to the system while successfully managing the tensions this generates? The approach advocated here is that we should correlate the mark as characterized at the time of registration—agreeably modest in its scope and ambitions—with the mark as deployed in an enforcement context, where it otherwise tends to be read more generously. The doctrine of prosecution history estoppel in patent law may have valuable lessons for trademark law.

scholarly journals Position of the European Court on the Implementation of Decisions by National Courts in Latvia and in Finland which are in Legal Force

2016 ◽  
Vol 3 (6) ◽  
pp. 69-77
Author(s):  
Vladimir Jilkine
Keyword(s):  
Human Rights ◽  
Comparative Study ◽  
Supreme Court ◽  
National Court ◽  
Doctoral Degree ◽  
European Convention ◽  
Legal Scholar ◽  
Legal Norms ◽  
National Courts ◽  
European Court

Legal scholar and practising lawyer from Finland Vladimir Jilkine, who recently defended his thesis with confidence, acquiring the doctoral degree in Law, in a comparative study describes European Court of Human Rights judgments and the conclusions on the implementation of national court rulings having come into force in Latvia and Finland. European Court of Human Rights judgements prove that both in Latvia, as well as in the country recognised for its democratic values, legal norm interpretations which are contrary to the international legal norms still exist. The Latvian Supreme Court and Finnish Republic Supreme Court jurisdiction state that the European Convention is recognised as essential and important legal instrument to be taken into account when dealing with specific cases. Tiesību zinātnieks un praktizējošs jurists no Somijas Vladimirs Žilkins, kurš nesen pārliecinoši aizstāvēja promocijas darbu, iegūstot tiesību zinātņu doktora grādu, salīdzinošā pētījumā apskata Eiropas Cilvēktiesību tiesas spriedumus un atziņas par spēkā stājušos nacionālo tiesu nolēmumu izpildi Latvijā un Somijā. Eiropas Cilvēktiesību tiesas spriedumi liecina, ka gan Latvijā, gan arī valstī ar atzītām demokrātiskām vērtībām – Somijā – ir tiesisko normu interpretācijas, kuras ir pretrunā ar starptautisko tiesisko regulējumu. Latvijas Republikas Augstākās tiesas un Somijas Republikas Augstākās tiesas judikatūra liecina, ka Eiropas Konvencija uzskatāma par būtisku un nozīmīgu juridisku instrumentu, kas jāņem vērā, izskatot konkrētās lietas.

scholarly journals The Challenges of Prior Use to New Zealand Registered Trade Mark Law

2014 ◽  
Vol 45 (2) ◽  
pp. 257
Author(s):  
Rob Batty
Keyword(s):  
New Zealand ◽  
Trade Mark ◽  
Trade Marks ◽  
The Public ◽  
Consumer Confusion ◽  
Prior Use ◽  
Trade Mark Law ◽  
Trade Mark Registration

Under the Trade Marks Act 2002, the registrant of a trade mark is provided with the exclusive rights to use its trade mark. Priority to such exclusive rights is awarded to the person who files a trade mark application first. A searchable Register of trade marks enables traders and the public to see which trade marks have already been registered and by whom. This seemingly certain system is complicated by the continuing relevance of unregistered trade marks under New Zealand law. The first user of a trade mark in the marketplace is considered the true "owner" or "proprietor" of a trade mark. A prior user of an unregistered mark is able to prevent registration of a trade mark, or cancel an existing trade mark registration, even when the application was filed in ignorance of any prior use and where there is no prospect of consumer confusion. This article explores the unsatisfactory nature and consequences of this law of "proprietorship" and questions its continuing relevance. 

The Confusion Test in European Trade Mark Law

2019 ◽  
Author(s):  
Ilanah Fhima ◽  
Dev S. Gangjee
Keyword(s):  
European Union ◽  
Trade Mark ◽  
The European Union ◽  
Legal Doctrine ◽  
Systematic Account ◽  
Member States ◽  
Eu Member States ◽  
National Courts ◽  
Trade Mark Law ◽  
European Trade

Historically, likelihood of confusion has been the core infringement test for trade mark law, and it remains the most frequently applied test in infringement actions by far. However, there are noticeable differences in how it is applied by the Court of Justice of the European Union (CJEU), the General Court, and national courts; and questionable outcomes when it is applied in novel situations. This book is the first comprehensive and systematic account of the confusion test within the harmonised European trade mark system. It considers how the test is applied by national trade mark registries across EU member states, by the European Union Intellectual Property Office (EUIPO), by national courts, and by the CJEU. It offers practical guidance, while also evaluating the viability of more recent developments such as initial-interest confusion, post-sale confusion and consumer responses to uses of trade marks on the internet. The book analyses three distinct strata of legal doctrine: the decisions of the CJEU, including the General Court; the extensive body of decisions by EUIPO; and the application of harmonised trade mark law by courts of member states, focusing on leading decisions as well as wayward ones. It also draws upon the legal position in the US to illuminate these issues.

Four Dimensions of Diamond T: Combination Trade Marks of Colours And Shapes

2006 ◽  
Vol 37 (4) ◽  
pp. 583
Author(s):  
Michael McGowan
Keyword(s):  
Three Dimensional ◽  
Trade Mark ◽  
Fourth Dimension ◽  
Trade Marks ◽  
Four Dimensions ◽  
Trade Mark Law ◽  
Dimensional Shape ◽  
Three Dimensional Shape

This article examines the relatively new fields of colour and shape trade marks. It was initially feared by some academics that the new marks would encroach on the realms of patent and copyright.  However, the traditional requirements of trade mark law, such as functionality and descriptiveness, have meant that trade marks in colour and shape are extremely hard to acquire if they do not have factual distinctiveness. As colour and shape trade marks have no special restrictions, it is proposed that the combination trade mark theory and analysis from the Diamond T case should be used as a way to make them more accessible. The combination analysis can be easily applied because every product has a three dimensional shape and a fourth dimension of colour.

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