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Famous and Well-Known Marks: An International Analysis uniquely explores the rationale for and implementation of the protection of

these exceptional trademarks. This benchmark work, available online for the first time, is an invaluable guide to the principles and practice

of this evolving body of international law. INTA gratefully acknowledges the contributions of this publication's Principal Author and Editor, Frederick W. Mostert, and all of its Contributing Authors.

The Supplemental Resource, accessible through the tab above, is a separate searchable database of marks that have been recognized as famous or well-known by particular jurisdictions.

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CONTENTS Collapse All CHAPTER 1: International Recognition and Protection of Famous and Well-Known Marks I. Introduction II. Supranational Law III. The Criteria: When Is a Mark "Famous" or "Well-Known"?

A. The Distinction Between Reputation and "Well-Known Marks" B. The Degree of Recognition of the Mark C. The Extent to Which the Mark Is Used and the Duration of the Use D. The Extent and Duration of Advertising and Publicity Accorded to the Mark E. The Extent to Which the Mark Is Recognized, Used, Advertised, Registered, an Enforced Geographically or, If Applicable, Other Relevant Factors That May Determine the Mark's Geographical Reach Locally, Regionally, and Worldwide F. The Degree of Enforcement and Registration of the Mark G. The Degree of Inherent or Acquired Distinctiveness of the Mark H. The Degree of Exclusivity of the Mark and the Nature and Extent of Use of the Same or a Similar Mark by Third Parties I. The Nature of the Goods or Services and the Channels of Trade for the Goods or Services That Bear the Mark J. The Degree to Which the Reputation of the Mark Symbolizes Quality Goods K. The Extent of the Commercial Value Attributed to the Mark IV. Parameters of Famous and Well-Known Marks A. Marks That Are "Famous," "Well-Known," or That Enjoy a "Reputation" B. Additional Parameters C. Caveat: Famous and Well-Known Marks Only V. Protection of Famous and Well-Known Marks and the Element of Bad Faith A. The Element of Bad Faith in Proceedings for the Refusal of an Application or for the Cancellation of a Registration and for Injunctive Relief B. The Element of Bad Faith C. Bad Faith as a Single Factor D. Good Faith Adoption VI. Protection of Famous and Well-Known Marks on Non-Competing Goods A. Confusion of Business Connection or Sponsorship B. Trademark Dilution C. Defense in Dilution Cases D. Commercial Magnetism as a Ius In Se VII. Remedies A. Introduction B. Refusal of an Application or Cancellation of a Registration That Conflicts With a Famous or Well-Known Mark C. Injunctive Relief Against the Use of a Mark That Conflicts With a Famous or Well-Known Mark D. Damages VIII. Customs: Protection of Famous and Well-Known Marks at the Border A. Introduction B. Supranational Law-Recognizing Changes C. National Law IX. Counterfeits: The Protection of Famous and Well-Known Marks Against Piracy A. Introduction B. The Nature and Extent of the Trademark Counterfeiting Problem C. Laws Relating to Trademark Counterfeiting, Enforcement and Famous and Well-Known Mark Protection D. A Practical Trademark Enforcement Program for Famous and Well-Known Mark Owners

1. Centralized Command

2. Effective and Experienced Outside Counsel and Private Investigators

3. An Anticounterfeiting Policy and Plan

4. Close Coordination With the Trademark Registration Program

5. Careful Planning at the Regional and National Level and Budgetary Considerations

6. Using Anticounterfeiting Technologies

7. Use of Databases and Control of Information

8. Use of Appropriate Enforcement Weapons

9. Working with Other Intellectual Property Rights Holders

10. Publicity and Public Relations

11. Evidence of Fame and Reputation

12. Assessment and Recidivism E. Conclusion X. Conclusion

–  –  –

CHAPTER 3: Recognition and Protection of Famous and Well-Known Marks by Jurisdiction ARGENTINA I. Introduction II. Supranational and National Law III. The Criteria: When Is a Mark "Famous" or "Well-Known"?

IV. Parameters of Famous and Well-Known Marks V. Protection of Famous and Well-Known Marks and the Element of Bad Faith VI. Protection of Famous and Well-Known Marks on Non-Competing Goods A. General B. Notoriety as a Distinctive Element C. Dilution D. Misappropriation and Unjust Enrichment VII. Damages AUSTRALIA I. Introduction II. Supranational and National Law A. Refusal or Cancellation B. Prohibition of Use of Confusing Marks III. The Criteria: When Is a Mark "Famous" or "Well-Known"?

IV. Parameters of Famous and Well-Known Marks V. Protection of Famous and Well-Known Marks and the Element of Bad Faith VI. Protection of Famous and Well-Known Marks on Non-Competing Goods VII. Damages VIII. Conclusion BENELUX I. Introduction II. Supranational and National Law A. Supranational Law B. Previous Benelux Law C. Current Benelux Law III. The Criteria: When Is a Mark "Famous" or "Well-Known"?





IV. Parameters of Famous and Well-Known Marks V. Protection of Famous and Well-Known Marks and the Element of Bad Faith VI. Protection of Famous and Well-Known Marks on Non-Competing Goods VII. Damages VIII. Conclusion BRAZIL I. Introduction II. Supranational and National Law III. The Criteria: When Is a Mark "Famous" or "Well-Known"?

IV. Parameters of Famous and Well-Known Marks V. Protection of Famous and Well-Known Marks and the Element of Bad Faith VI. Protection of Famous and Well-Known Marks on Non-Competing Goods VII. Damages CANADA I. Introduction II. Supranational and National Law A. Refusal or Cancellation of Registration B. Prohibition on Use of Confusing Marks III. The Criteria: When Is a Mark "Famous" or "Well-Known"?

A. Degree of Notoriety or Recognition of the Mark B. Geographical Extent of Making-Known IV. Parameters of Well-Known Marks V. Protection of Famous and Well-Known Marks and the Element of Bad Faith VI. Protection of Famous and Well-Known Marks on Non-Competing Goods VII. Section 22: Depreciation of Goodwill VIII. Damages CHINA I. Introduction II. Supranational and National Law A. Supranational Law B. National Law

1. The 1996 Regulations

2. Current Trademark Law

3. The 2003 Regulations III. The Criteria: When Is a Mark "Well-Known"?

IV. Parameters of Well-Known Marks A. Procter & Gamble v. Shanghai Chengxuan Intelligent Tech Development Limited B. E.I. Dupont De Nemours and Company v. Beijing Cinet Information Limited C. Starbucks v. Shanghai Xinbake Coffee Shops Limited V. Protection of Well-Known Marks and the Element of Bad Faith VI. Protection of Well-Known Marks on Non-Competing Goods VII. Damages VIII. Conclusion FRANCE I. Introduction II. Supranational and National Law A. The Paris Convention B. The TRIPS Agreement C. The European Trademark Harmonization Directive III. The Criteria: When Is a Mark "Famous" or "Well-Known"?

A. Well-Known Trademarks B. The Famous Trademark (or Mark of Renown) IV. Parameters of Famous and Well-Known Marks A. Well-Known Trademarks B. Famous Trademarks V. Protection of Famous and Well-Known Marks and the Element of Bad Faith A. The Acquisition of a Right: Article 6bis of the Paris Convention B. Other Consequences of Well-Known Status VI. Protection of Famous and Well-Known Marks on Non-Competing Goods A. The Case Considered B. International Discussion C. The Early Cases D. The Current Positive French Law E. Jurisprudence VII. Damages GERMANY I. Introduction II. International and National Law III. The Criteria: When is a Mark "Famous," Reputed" or "Well-Known"?

A. Court Rulings Prior to the Coming Into Force of the German Trademark Act on 1 January 1995 B. The Concept of Reputed in the Reputed Marks in German Trademark Law IV. Parameters of Famous, Reputed and Well-Known Marks A. Market Recognition B. Well-Known Mark C. Marks Having a Reputation in Germany D. amous Marks E. The Determination of the Level of Recognition V. Protection of Reputed Marks and the Element of Bad Faith VI. Protection of Reputed Marks on Non-Competing Goods A. The Likelihood of Confusion and the Similarity of the Goods and Services

1. Assessment of the Likelihood of Confusion Pursuant to Section 14(2) (No. 2) MarkenG

2. Similarity of Goods and Services B. Exploitation of Reputation and Tarnishment of Reputation (Dilution)

1. Identical or Similar Goods and Services

2. Identical or Similar Marks

3. The Exploitation of or Detriment to Distinctiveness or Reputation Without Due Cause by Unfair Means a. Exploitation of Reputation b. Exploitation of Distinctive Character c. Detriment to Reputation (Tarnishment of Reputation) d. Detriment to Distinctive Character (Tarnishment of Distinctiveness) C. Use as Trademark VII. Damages VIII. Conclusion INDIA I. Introduction II. Supranational and National Law III. The Criteria: When Is a Mark "Famous" or "Well-Known"?

IV. Parameters of Famous and Well-Known Marks A. Trademarks B. Trade Names C. Trade Dress D. Evidence V. Protection of Famous and Well-Known Marks and the Element of Bad Faith VI. Protection of Famous and Well-Known Marks on Non-Competing Goods VII. Remedies VIII. Time Factor in Infringement Cases IX. Conclusion ITALY I. Introduction II. Supranational and National Law III. The Criteria and Parameters: When Is a Mark "Famous" or "Well-Known"?

IV. Protection of Famous and Well-Known Marks A. Civil Protection B. Criminal Protection V. Damages VI. Conclusion JAPAN I. Introduction II. Supranational and National Law III. The Criteria: When Is a Mark "Famous" or "Well-Known"?

IV. Parameters of Famous and Well-Known Marks V. Protection of Famous and Well-Known Marks and the Element of Bad Faith VI. Protection of Famous and Well-Known Marks on Non-Competing Goods VII. Damages VIII. Protection of Famous and Well-Known Marks Against Cybersquatting IX. Conclusion MEXICO I. Introduction II. Supranational and National Law III. The Criteria: When Is a Mark "Well-Known"?

IV. Parameters of Famous and Well-Known Marks V. Protection of Famous and Well-Known Marks and the Element of Bad Faith VI. Protection of Famous and Well-Known Marks on Non-Competing Goods VII. Damages

–  –  –

SINGAPORE I. Introduction II. Supranational and National Law III. The Criteria: When Is a Mark "Well-Known"?

A. Statutory Definition of a "Well-Known" Mark B. Concept of "Well-Known" in the Context of the Tort of Passing-Off C. Conclusion: "Overall Commercial Impression" and "Totality of the Evidence" IV. Parameters of Famous and Well-Known Marks A. Protection Under the Trade Marks Act B. Protection Under the Geographical Indications Act C. Protection Under the Tort of Passing-Off D. Protection of Well-Known Marks as Domain Names V. Protection of Famous and Well-Known Marks and the Element of Bad Faith A. Significance of Bad Faith Under the Trade Marks Act B. Significance of Bad Faith Under the Geographical Indications Act C. Significance of Bad Faith in Passing-Off Cases D. Significance of Bad Faith in Domain Name Cases E. Bad Faith and Interlocutory Relief VI. Limitations on the Protection of Well-Known Marks VII. Future Developments

SOUTH AFRICA

I. Introduction II. Supranational and National Law A. Refusal or Cancellation of Registration B. Prohibition of Use III. The Criteria: When is a Mark "Famous" or "Well-Known"?

IV. Parameters of Famous and Well-Known Marks V. Protection of Famous and Well-Known Marks and the Element of Bad Faith VI. Protection of Famous and Well-Known Marks on Non-Competing Goods VII. Damages SPAIN I. Introduction II. Supranational and National Law III. The Criteria and Parameters: When Is a Mark "Famous" or "Well-Known"?

A. Degree of Trademark Recognition B. Extent and Duration of Trademark Use C. Extent and Duration of Promotion of the Mark D. Geographic Area in Which a Trademark Is Recognized, Used, Advertised, Registered, and Defended and Other Factors for Determining Whether a Trademark Has Local, Regional or Worldwide Significance E. Degree of Inherent or Acquired Distinctiveness of Trademarks F. Degree of Trademark Exclusivity and Nature and Extent of Use of the Same or Similar Marks by Third Parties G. Nature of the Goods or Services and of the Channels of Trade for the Goods or Services Covered by a Trademark H. On Whether Well-Known Character and Renown Are the Same as a Reputation as a Symbol of Product Quality I. The Importance of a Trademark's Commercial Value IV. Protection of Famous and Well-Known Marks and the Element of Bad Faith A. Bad Faith as a Determining Factor in Refusal of Registration B. Bad Faith as a Cause of Invalidity of a Registration C. Bad Faith as Grounds for Claiming Ownership of a Registration D. Bad Faith and Dolus as Elements of Wrongdoing (Particularly Criminal Wrongdoing) in the Infringement of Registered Trademark Rights V. Protection of Famous and Well-Known Marks on Non-Competing Goods A. Possible Business Connection or Sponsorship B. Taking Unfair Advantage of the Well-Known Status or Renown C. Protection Against Dilution of and Detriment to Well-Known and Famous Trademarks VI. Remedies A. Applications for Conflicting Marks Filed by Third Parties B. Conflicting Third-Party Registrations C. Third-Party Acts Infringing Rights That Do Not Involve the Register of Trademarks D. Damages E. Injunctive Relief VII. Customs Protection for Famous and Well-Known Marks VIII. Protection of Famous and Well-Known Trade Names IX. Conclusion

UNITED KINGDOM

I. Introduction A. The Terms "Famous Mark" and "Well-Known Mark" II. Supranational and National Law A. Relevant Supranational Agreements and Laws B. Article 6bis of the Paris Convention as Applied in the United Kingdom C. The TRIPS Agreement D. The Community Trade Mark III. The Criteria: When is a Mark "Famous" or "Well-Known"?



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