Law and Practice
Elgar Intellectual Property Law and Practice series
Chapter 6: TRADEMARKS, COLLECTIVE MARKS, CERTIFICATION MARKS, PASSING OFF AND DOMAIN NAMES
Trade mark laws invariably refuse to allow geographical marks to be registered on the ground that they are insufficiently distinctive, as well as the public interest of leaving to traders the names of the geographical areas in which they are located, particularly where a positive commercial reputation is associated with products coming from those areas. Similarly, trade mark laws provide as a defence to infringement the use of a person’s address or an indication of the geographical origin of goods or services. Excepted from the trade mark rules that disqualify the registration or enforcement of geographical marks are collective marks and certification marks, as well as registered GIs. The European rules that relate to these categories of trade marks are discussed in this chapter. Both Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (‘Community Trade Mark Regulation’) and Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (‘Trade Marks Directive’) define as ‘signs of which a trade mark may consist’ those signs which ‘are capable of distinguishing the goods or services of one undertaking from those of other undertakings’. In 2007 the European Council, recalling that the Community trade mark system had been designed to co-exist with the national trade mark systems and that more than a decade had passed since the creation of the Community trade mark, identified the need for an overall assessment of the functioning of the Community trade mark system.
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