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DISTINCTIVENESS FOR NON-VERBAL TRADEMARKS - THE CZECH, EUROPEAN AND AMERICAN LEGAL SYSTEMS

Aktualizace: 20. úno 2019


The submitted paper covers distinctiveness for non-verbal trademarks across the Czech, European and American legal systems. The main goal of this article subsumes the interpretation of trademark institute with emphasis on key terms concerning its distinctiveness which comprise a distinctive legal capacity, inherent distinctiveness, distinctiveness acquired through use in business relation, relevant public or average consumer, and means of providing evidence on acquired distinctiveness. When interpreting the key term distinctiveness, authoress applies the method of extensive interpretation according to the general theory of law.


First, it is necessary to recall the fundamental difference between the legislation in the Czech Republic, hereinafter “CR”, the European Union, hereinafter “EU”, and the United States of America, hereinafter “USA”. The rights arising from trademark institute in the CR and EU originate exclusively by registration in relevant trademarks registers, but the rights arising from trademark institute in the US originate by its actual use because the American legal system is based on the so-called common law which has been developed on the basis of judicially created law system of states of federation.


To obtain the protection of used sign, it is not necessary to register trademark, but if this is done, the trademark gives a higher degree of protection, especially with regard to the enforcement of trademark rights. In the US, there coexists dual legislation – a federal and state – the state legislation is constituted by laws of individual states based on common law. It's very similar to the European Union trademark, hereinafter “EUTM”, when next to EU legislation relating to the EUTM, at the same time, there is the legislation at national level in each Member State. The subject of the submitted study is the analysis of the relevant provisions of the US legislation at the federal level.


American Trademark Act, hereinafter “Lanham Act”, has been enacted in 1946 and established the procedure for federal registration of trademarks. If a sign, respectively trademark[1] , meets certain qualifications, it can be listed on the Principal Register which affords its many benefits. Other trademarks can be listed on the Supplemental Register which exists to allow trademarks not otherwise registrable in the USA to be registered from foreign countries that require home-country registration first, and to allow registration for descriptive marks not distinctive enough to qualify for the Principal Register. The registration is not mandatory to receive trademark protection, as authoress mentioned above, but federal trademarks in the Principal Register receive significantly stronger protection than unregistered trademarks.[2]


[1] Explanatory Note: The sign is becoming the trademark after its registration in trademark register.

[2] Dudnikov, Karen and Meadors, Michael. The History of Trademark Law. In: Tabberone Trademark Page. [Online]. [cit. 2015-06-03]. Dostupné z WWW: http://www.tabberone.com/Trademarks/TrademarkLaw/History/History.shtml.




Celý článek k dispozici níže:

https://static.wixstatic.com/ugd/f2e530_d4111293df2841b7a1bbb3b7b2f0bd36.pdf


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Martina Zdvihalová - Patentový zástupce
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Mgr. MARTINA ZDVIHALOVÁ, Ph.D.

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