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Trade Mark Dilution in EU Comparing with USA - Essay Example

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Trade Mark Dilution in European Union Introduction Trade marks often suffer fro blurring and tarnishment. Blurring and tanishment are what is referred to as dilution when they affect trademarks. Blurring takes place when an original trade mark is affected through its usage in other areas…
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Trade Mark Dilution in EU Comparing with USA
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Download file to see previous pages Blurring and tarnishment have been recognized in the anti dilution laws of the European Union. There have been controversies surrounding various organizations in the world on the use of trade marks. Companies have claimed that their competitors or other organizations have been using their trademark thereby affecting their market base as well bas competition. Trade mark dilution refers to the use of a similar trade mark by another company. However there are misunderstandings as to whether the products registered under the trade mark should be similar or different. In the European Union, courts have ruled otherwise that the use of similar trademarks but different goods under the trade mark does not lead to trade mark dilution1. The European Union has put in place measures to curb dilution of trade marks; they ensure that there is no unfair advantage on the use of a trade mark on their poor quality products that can harm the products reputation and character. The most widespread term applied is known as the protection against “free riding” on the trade mark. It is also important to note that the unfair advantage in the use of trade mark, blurring and tarnishment are grouped together in the same sub article in their laws. In the United States, there is no major link in the application of laws between dilution protection and unfair advantage over the use of trade mark2. There are three aspects in which dilution differ from other forms of infringement in the European Union. The first aspect involves the confusion in which the consumer cannot differentiate the original trade mark and its usage on other junior products. Secondly, dilution can also involve the use of trade mark on different goods. This differs in traditional forms of protection where the difference in types of goods represented by the same trade mark was not a big issue. It was difficult to actually show the level of confusion when the goods were dissimilar from those of the senior user of the trade mark. Finally, dilution is generally applied in cases whereby the consumers have a common knowledge of the trade mark and the goods it represent3. The controversy surrounding dilution is based on its differences from confusion based infringement. In Europe as well as in the United States, the focus is on the use of a similar trade mark but with dissimilar goods. Infringement actions involved situations whereby the goods under the trade mark were similar and thus confusing the consumers4. The Argument The application of anti dilution laws in Europe are more complicated. The formulation of trade mark laws brought about different perspectives in the application of the law. The main concern has been on the unfair advantage enjoyed by the junior users of a trade mark rather that the harm caused to the trade mark. Unfair competition was the main driving force behind the use of trademarks by other companies. For example, in France, a company had to show that its trade mark suffered harm fro its usage by other companies. However, the use of a trade mark to achieve competitive advantage was also termed as a form of harm to the trade mark. In Germany, a company had to show how it was affected in competition by the use of its trade mark by other competitors. Competition should be understood to mean competition for the trade mark and on situations whereby the junior user of the trademark would use the mark on dissimilar goods5. Article 5(2) of the ...Download file to see next pagesRead More
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