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    TIẾN SĨ Well-known trademark protection – A comparative study between the laws of European Union and Vietnam

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  6. Well-known trademark protection – A comparative study between the laws of European Union and Vietnam

    Luận án tiến sĩ bằng tiếng Anh năm 2011
    Đề tài: Well-known trademark protection – A comparative study between the laws of European Union and Vietnam
    Bảo hộ nhãn hiệu nổi tiếng – Nghiên cứu so sánh giữa pháp luật Liên minh châu Âu và Việt Nam

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    TABLE OF CONTENTS
    1. RESEARCHING WELL-KNOWN TRADEMARKS. 9
    2. THEORETICAL FOUNDATIONS. 26
    2.1. TRADEMARKS – A GENERAL OVERVIEW . 26
    2.1.1. Definition of trademark. 26
    2.1.2. Functions of trademarks. 30
    2.1.3. The characteristics of trademark. 35
    2.1.4. Other identification marks. 38
    2.2. TRADEMARK LAW . 41
    2.2.1. Trademark law principles. 41
    2.2.2. Trademark law rationale. 44
    2.2.3. Trademark law and other legal fields. 48
    2.3. WELL-KNOWN TRADEMARKS. 50
    2.3.1. Theoretical foundations. 51
    2.3.2. Well-known trademark – the concept 55
    2.3.3. Well-known trademark – Specific characteristics. 60
    2.4. WELL-KNOWN TRADEMARKS IN GLOBAL TRADE 63
    2.4.1. The impact of globalization. 63
    2.4.2. Challenges to protect well-known trademarks. 66
    2.5. SUB-CONCLUDING REMARKS. 67
    3. THE LEGAL FRAMEWORK OF WELL-KNOWN TRADEMARK PROTECTION 70
    3.1. INTERNATIONAL CONVENTIONS AND TREATIES. 70
    3.1.1. Paris Convention. 70
    3.1.2. TRIPs Agreement 1994. 76
    3.1.3. Other regulations. 78
    3.2. THE EUROPEAN UNION LEGAL SYSTEM . 84
    3.2.1. Introduction to European Trademark law 84
    3.2.2. Well-known trademark protection in Europe. 86
    3.2.3. Well-known trademark protection in EU 88
    3.3. THE VIETNAMESE LEGAL SYSTEM . 103
    3.3.1. Overview of Trademark Law in Vietnam 103
    3.3.2. Vietnamese laws on well-known trademark protection. 111
    3.3.3. The enforcement of well-known trademarks. 122
    3.4. SUB-CONCLUDING REMARKS. 134
    4. A COMPARATIVE ANALYSIS. 138
    4.1. DETERMINATION OF WELL-KNOWN TRADEMARK 139
    4.1.1. Definition. 139
    4.1.2. The criteria for determining a well-known trademark. 148
    4.1.3. Degeneration of well-known trademarks. 166
    4.2. THE LEGAL GROUNDS FOR WELL-KNOWN TRADEMARK PROTECTION 168
    4.2.1. The doctrine of likelihood of confusion. 169
    4.2.2. The doctrine of dilution. 173
    4.2.3. The principle of bad faith. 178
    4.3. THE SCOPE OF THE PROTECTION 181
    4.3.1. Unregistered trademark. 181
    4.3.2. Dissimilar goods and services. 182
    4.3.3. Non-competing goods and services. 183
    4.3.4. The duration of protection. 183
    4.4. SUB-CONCLUDING REMARKS. 185
    5. ASSESSING WELL-KNOWN TRADEMARKS IN VIETNAM 188
    5.1. ACIEVEMENTS. 188
    5.1.1. General policies and legislations. 188
    5.1.2. Enforcement of the trademark system 189
    5.1.3. Well-known trademark protection. 190
    5.2. SHORTCOMINGS. 193
    5.2.1. Lack of concern. 193
    5.2.2. The lack of detailed provisions. 194
    5.2.3. The weakness of the enforcement system 195
    5.3. FURTHER IMPROVEMENTS. 198
    5.3.1. General suggestions. 198
    5.3.2. Specific suggestions. 200
    5.4. CONCLUDING REMARKS. 209
    6. REFERENCES. 213

    1.RESEARCHING WELL-KNOWN TRADEMARKS
    BACKGROUND
    Trademarks, together with patent, copyright, and other intellectual property right subject matters, has come under increasing study because they are utilized on a global scale. Actually, the concept of “trademark” has been in use from as early as the Stone Age. The predominant view regarding their historical development is that the earliest form of marking (branding) was used in respect of animals, namely, the marking of a "brand" on cattle by farmers using hot irons. This practice is portrayed in early Stone Age cave drawings, and in wall paintings of ancient Egypt. Another form of marking was the ear-cut branding of cattle, which appeared in Madagascar.[1] However, the codification of trademark law was first enacted and cases concerning the protection of trademark rights first addressed in the United Kingdom from the 1800’s.[2] A number of international conventions have been enacted affecting trademarks as well as a great deal of national legislation relating to intellectual property rights and specifically to trademarks.[3] These sources of law are necessary to protect trademarks nationally as well as globally. However, there is an important aspect of trademark law which has not been addressed in national law or in international conventions over this long period.[4] This is the “well-known” or “famous” trademark which may be understood as a trademark which is widely known and/or used in a global context or at least within a country. In this thesis I will initially use the words well-known and famous as synonyms, but eventually I will try to make a distinction between the terms.
    The lack of legislation in this field has created many difficulties for the practical use and protection of “well-known” trademarks. There have been many disputes over the years, arising in commercial transactions involving well-known trademarks. Settlements of these disputes have mainly been based upon judicial decisions in common law countries or by application of the related laws of civil law countries. This has created many obstacles to defending owners’ legitimate rights in well-known trademarks. This also has impeded the process of improving laws regarding intellectual property rights and well-known trademarks or ensuring the integrity, operation and feasibility of legal systems. Thus, establishing a legal regime with respect to well-known trademark protection that is applicable globally is one of the most important goals for the development of trademark law in national and international legal environments.
    International law doctrine in respect of well-known trademarks was first incorporated into the Paris Convention of 1925. Today, an understanding of this doctrine is especially important in a world of increased global marketing and advertising. Creating a global brand has become much easier with the advent of new, less costly, and more accessible long-distance communications. While political boundaries and demarcation lines may hinder the movement of our physical bodies around the globe, they provide no barriers to the free flow of information.[5] Thus, a trademark can be delivered everywhere at once to consumers as well as to the public in increasingly faster and more effective channels. In this manner a trademark can become widely known in many markets all over the world, unrestricted by restrictions to physical movement.
    Well-known trademarks have been recognized as one of the most important types of trademark in the trademark system as reflected in both national law and in international treaties. The legal regime of well-known trademark protection has been continuously enhanced and developed over time due to the increasing importance of well-known trademarks becoming known to a worldwide public as well as development of their role in the international trade system. However, these legal issues are novel concepts for many countries, especially in developing and least developed countries, including Vietnam.
    With the trend towards integration and globalization, greater numbers of foreign investors enter the Vietnamese domestic market. They bring with them many foreign trademarks, including well-known trademarks, not only into the domestic marketplace but also into the national legal system. Nowadays, we see universal brands appearing in Vietnamese markets such as SONY, TOYOTA, COCA-COLA MICROSOFT, and NOKIA. These trademarks not only represent assets of the foreign companies bearing these names but also become important elements of the national economic system whenever they are brought into that market. For example, the monetary value of the Coca-Cola mark (comparing products with the mark on them to other non-trademarked products sold by the company) was calculated to be 33.4 $ USD Billion in 1993, and more than 70.0 $ USD Billion in 2010 (making it the most valuable global brand of the year).[6] This proves that the economic value of intellectual property rights, and particularly trademarks, play a key role in the development of each company as well as in the world economy.
    This also highlights the issue that protection and enforcement of intellectual property rights is still a dimly lit picture in Vietnam. Even though the Government has attempted to promulgate new laws and regulations, infringement and violation of intellectual property rights continue to present major challenges to national authorities and intellectual property rights holders. The field of trademark law is especially troubling as many disputes and claims have been submitted to the authorities regarding trademark infringement.
    In Vietnam, most people do not have a great deal of awareness of well-known trademarks. For example, the word “HONDA” is commonly used generically to refer to all brands of motorbikes without any distinction among them. This seems to be a common practice that has existed for a long time. This raises some important questions that to be clarified:
    (1) Are there any infringements of the trademark owner’s rights in the “HONDA” example?
    (2) Do the owners of the mark “HONDA” have the right to make a claim for protection of their rights relating to this mark?
    (3) If such rights may be claimed, how they can be protected in Vietnam?

    [1] See e.g. Amir H. Khoury, Ancient and Islamic sources of intellectual property protection in the Middle East: A focus on trademarks, 43 IDEA 151, 155-156 (2003). See also, World Intellectual Property Organization (WIPO), Intellectual Property Reading Materials 191 (WIPO Publication, Geneva 1995) ("As long as 3000 years ago, Indian craftsmen used to engrave their signatures on their artistic creations before sending them to Iran. Manufacturers from China sold goods bearing their marks in the Mediterranean area over 2,000 years ago and at one time about a thousand different Roman pottery marks were in use, including the FORTIS brand, which became so famous that it was copied and counterfeited.").
    [2] See subchapter 2.1.2 infra.
    [3] See e.g., The Paris Convention for the Protection of Industrial Property 1883, The Madrid Agreement for The International Registration of Marks 1891, The Agreement on Trade –Related Aspects of Intellectual Property Rights (TRIPs) concluded as a part of the Uruguay Round on the re-negotiation of the GATT in 1994, The Arrangement of Nice for the International Classification of Goods and Services in 1957, First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks OJ 1989 L40/1; Council Regulation (EC) 40/94 OF 20 December 1993, OJ 1994 L11/1 on the Community Trade mark. And some national laws such as : The Trade Marks Act 1938 and after that being replaced by the Trade marks Act 1994 of the United Kingdom, The Lanham Act 1946 of the United States of America, The Federal Trade mark Dilution Act in 1995 (as revised in 2006).
    [4] The concept of well-known trade mark was first stated in the 1925 Amendment of the Paris Convention.
    [5] Frederick Mostert, Famous and Well-known Marks – An international Analysis, (Toronto Butterworth’s 1997), page v.
    [6] Ruth Annand and Helen Norman, Blackstone’s Guide to the Trade marks Act 1994, (Blackstone Press Limited 1994), page 10. See also Business Week and Interbrand Special Report on the 100 Top Brands, 2010. Available at :
    Interbrand Branding Studies - Best Global Brands, Best Retail Brands, Best Japanese Brands and more.

    BIBLIOGRAPHY
    Advocate General Jacobs, The opinion delivered on 29 April 1997 on the case of “Sabel v. Puma AG”, case C-251/95.
    Amir H. Khoury, Ancient and Islamic sources of intellectual property protection in the Middle East: A focus on trademarks, 43 IDEA 151, 155-156 (2003)
    Anne Gilson LaLonde on the “Famous Marks Doctrine”: Foreign Trade mark Renown as the Basis for Protection in the United States.
    Anne Gilson LaLonde, Big News for Owners of Famous Trademarks: Enactment of the Trademark Dilution Revision Act of 2006, October 10, 2006.
    Arthur R. Miller, Michael H. David, “Intellectual Property – Patents, Trademarks and Copyrights”, Fourth edition, Thomson West 2000.
    Aulis Aarnio, “Reason and authority – A treatise on the Dynamic Paradigm of Legal Dogmatics”, (Ashgate Dartmouth, Aldershot 1997)
    Brad Sherman, Lionel Bently, The making of Modern intellectual property law, Cambridge University Press, 1999.
    C. W. Blegen, Korakou, A prehistoric settlement near Corinth, (American School of Classical Studies at Athens 1921), Fig. 3, No. 6
    Catherine Seville, EU Intellectual Property Law and Policy, Edward Elgar Publishing Limited 2009.
    Charles E. F. Rickett, Graeme W. Austin, International intellectual property, Oxford – Portland Oregon, 2000.
    Christopher Health, Trademark rights in Europe, European review of Private law 4, 1996.
    Christopher Heath, Kung-Chung Liu, The protection of well-known marks in Asia, Max Planck Series on Asian Intellectual Property Law, 2000.
    Clark W Lackert and Maren C Perry, “Global protecting well-known and famous marks: a global perspective”, Building and Enforcing Intellectual Property Value, 2008
    Cornish & Llewelyn, “Intellectual Property”, §17-99, third edition (2003).
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    Davis I Bainbridge, Intellectual Property, published in London 1999
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    Gordon V. Smith and Russell L. Parr, “Valuation of intellectual property and intangible assets” (1994).
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