From cultural symbols to commercial marks: a quantitative analysis of the trademark law protection of intangible cultural heritage in China

The issue of trademark law protection of intangible cultural heritage (ICH) is inevitably encountered in the conversion from cultural symbols to commercial marks. Although academic circles are still discussing this, the practice has already begun. This paper investigates the status of the trademark law protection of ICH in China from the perspective of the application and registration data of ICH trademarks. According to a quantitative analysis of 12 123 items of ICH trademark searching data in China, it can be seen that the trademark protection of ICH is not optimistic, the trademark use of ICH symbols is in a disordered state, and many ICH trademark applications may cause distortion, derogation, or dilution to the connotation of the ICH. As a result, excluding trademark squatting by outsiders and decentralized registrations by indigenous peoples, and orderly utilizing of ICH symbols under a collective trademark or a certification trademark, should be determined as the basic goal of trademark law protection of ICH. To achieve this goal, the solution of ‘exclusion plus unified utilization’ should be adopted in practice. According to this plan, indigenous peoples, the trademark office, courts, and the Center of ICH Protection need to collaborate and improve the trademark law protection of ICH through awareness-raising, actions, institutions, and information.

Creation of Technical Conditions for Use or Infringement – The Meanders of the Warehouse Keeper’s Liability in Light of CJEU Judgment C-567/18 Coty Germany

One form of industrial property right infringement is stocking for the purpose of offering or marketing. This form of infringement appears both in EU legal acts on trademarks or designs, as well as in national regulations, including those concerning patents. What is specific to stocking when compared to other activities comprising the stipulated exclusivity of the holder of industrial property rights is the fact that the literal meaning of “stocking” does not explain whether the infringing party or the warehouse keeper is the entity that places the goods in storage. The structure of industrial property rights as absolute rights would theoretically permit the view that the law is violated by both the entity that accepts the goods for storage and the entity that places such goods in storage. To determine if there is an infringement, it must be established what the goods being stocked are further intended for. It is not without significance that the finding of an infringement of industrial property rights does not depend on fault or awareness. From the point of view of the industrial property law regime, it is difficult to find arguments against this understanding of infringement by stocking. Since the offeror of goods infringing industrial property rights may be held liable even if the goods have not yet been manufactured, it is conceivable that the entity accepting such goods for stocking is also liable. This interpretation of the concept of stocking would certainly correspond to the absolute nature of liability for infringement.In a recent judgment the CJEU confirmed that the warehouse keeper who, on behalf of a third party, stores goods which infringe trademark rights only creates the technical conditions for trademark use by this third party provided that the warehouse keeper is not aware of that infringement. The CJEU also confirmed that only the person who decides about the purpose of storing the goods can be treated as an infringer. However, the CJEU did not respond to the question regarding whether the warehouse keeper could be treated as an infringer if it pursues the aims of storing the goods at the request of the entity that put the goods into storage.

Trademarks: The retrospect, definitions, partial tools of research

Subject. Currently, the growing competition and the economic crisis make manufacturers and sellers actively use trademarks so as to win new business and retain customers. Over 80 percent of any buying decision depend on the visual information, rather than the reasonable approach. Legal issues of trademark use in business relations draw the attention of professional and scientific communities in Russia and abroad, dating back to far away times. Objectives. We provide the rationale for a clearer definition of trademark for purposes of legal relations, examine the partial tools for studying verbal trademarks, and conduct an experiment to prove the efficiency of tachistoscopic tools for trademark studies as part of legal examinations. Methods. The study is based on general and partial methods of research. Studying verbal trademarks, the use of tachistoscopic tools helped conduct an experiment and make conclusions, notwithstanding a small sample. Results. Trademarks circulated in business affairs even in the A.C. times. In the second half of the 19th century, advanced economies set up the legislative framework on personalization means. All corresponding regulations are still being improved consistently. The systems approach and generalization helped sort out priority views on the concept trademark and coin a more specific term, which is important for scientific and practical activities of lawyers, managers and economists. Drawing upon the experiment, we made respective conclusions and suggest extrapolating them to similar studies as part of legal examinations. Conclusions and Relevance. Trademark is a construct of law from professionals' perspectives and a symbol attracting people’s attention to goods as ordinary people perceive it. In mixed economies, consumers’ perception of goods significantly determines the producer’s market position. Therefore, many market actors need to specify the concept trademark, including legal departments of companies. Trademark disputes have become more frequent cases heard by the Russian arbitration courts. So, the specified definition and the experiment are of scientific and applied value. The findings are designated to improve the legislative framework for personalization means. The tools and findings we present in our experiment can serve not only for scientific, but also practical purposes of legal examinations concerning verbal trademarks. They will also work for teaching on legal disciplines.

Protection of intellectual property rights on a trademark

In the process of developing their own business, legal entities and individuals are looking for new ways and tools to separate, individualize goods or services from others. The most effective tool to individualize and promote business not only in domestic but also global markets is a trademark. Therefore, it is worth paying attention to the brand from the moment of business formation. After all, the consumer perceives the brand visually, phonetically, semantically, it is a tool that psychologically affects the consumer of a product or service and forces him to make a choice. Relations arising during the acquisition, exercise and protection of trademark rights are provided by the Constitution of Ukraine, the Civil and Commercial Codes of Ukraine, the Law of Ukraine "On Protection of Rights to Marks for Goods and Services", as well as relevant ratified international treaties and other regulations acts. Also, the relevance of this topic is due to the fact that the trademark is a special, unique object of intellectual property rights, a means to individualize goods and services, as well as business participants. Problems of trademark use and protection are a significant issue, as a necessary condition for effective economic development, increasing the level of product competitiveness, not only in Ukraine but also abroad, protection against unfair competition is the proper implementation of trademark rights. During the writing of the article to achieve the goal the concept of trademark in Ukraine and its features were revealed, differences of trademark from other marks for goods and services were established, the legislation of Ukraine in the field of trademark protection was analyzed and characterized trademark in Ukraine.

International Experience of using Parallel Imports to Ensure the Accessibility of Drugs

The issue of IP rights protection of goods transferred through customs borders, in particular, medicinal products, became topical with the development of international trade. That is why there are many discussions on the parallel import and use of the rights expiration concept in the framework of modern integration processes. The article defines and discloses the features of the use of parallel import measures in the markets of original medicines and generics in different countries of the world and ways of ensuring fair competition in the specified markets; it also analyzes measures to stop anti-competitive behavior. The author also proves that parallel importing issues have not been properly resolved yet. Typically, parallel import matters are considered in terms of counterfeit products or the use of unfair competition in international trade. The problem of parallel imports is important not only in relation to a trademark use, but also in relation to the use of other types of intellectual property, inventions, etc. The approach of legislators and judicial practice to the prohibition or permission of parallel imports depends on the following factors: the ratio of interests of consumers of goods and intellectual property holders; commitments made in accordance with international treaties, both in the field of free trade (creation of a single market) and in the field of protection of intellectual property rights.

What Should Constitute Infringement of a Non-Traditional Mark?

Various “defensive doctrines” might be employed to create space for third parties wishing to make legitimate use of features of registered non-traditional marks. This chapter explores one such doctrine: a requirement that infringing use be “use as a trademark.” This doctrine, as it has been developed in countries such as Australia and New Zealand in cases involving non-traditional marks, is more complex than is often appreciated. At times it has been stretched to accommodate worthy policy considerations, which has caused tensions with other aspects of the registration system. At other times it has been applied too restrictively, unduly limiting the scope of permissible third party use of product features. The chapter offers suggestions as to how “trademark use” might be recalibrated to manage the full range of concerns raised by non-traditional marks, in a manner that affords owners adequate protection while leaving sufficient breathing room for third party users.

Athlete Trademarks

This chapter examines the protectability and registration of athletes’ names, nicknames, and catchphrases as trademarks under federal law. More and more athletes are seeking to register their names, nicknames, catchphrases, and fan slogans as federal trademarks in an attempt to monetize their fame and cultural capital. However, their goals in filing those applications are not often in accord with the traditional goals of trademark law. After providing an overview on trademark use and registration, the chapter discusses some of the limitations for trademark protection, including those based on distinctiveness, false association, and confusion. It also explains how trademark doctrines affect athletes’ ability to protect certain words or phrases as trademarks. Finally, it considers how the general goals of trademark law correspond to an athlete’s desire to protect words and phrases associated with him or her and prevent others from appropriating them.