IGIR lunch seminar by George-Mihai Irimescu on “The Protection of Unregistered Trademarks”

In their evolution, trademark protection systems worldwide, and especially in Europe, shifted from the declarative system to an attributive system. More specifically, jurisdictions that initially embraced a first-to-use trademark protection system evolved, in time, in first-to-file jurisdictions. This change was basically due to the development of trans-border commerce, which led to an increasing number of producers and service providers. In this context, predictability and legal certainty given by the attributive system was preferable.

Nevertheless, this shift led to other significant changes that may force us to re-think the trademark protection paradigm. Therefore, during the presentation, I will discuss whether the scope of trademark protection shifted from protecting consumers to protecting trademark owners, visible in a stronger emphasis on the protection of marks with a reputation rather than on the protection for marks without such reputation. The question arises whether trademarks still fulfil their original role.

My research, therefore, focuses on whether European legislation should leave more room to the protection of unregistered trademarks, other than well-known trademarks, and whether such an evolution could balance the disadvantages of the attributive system. The final PhD thesis ultimately wishes to show that harmonization of EU legislation with respect to unregistered trademarks is the right step forward, considering that: a) there are EU jurisdictions where unregistered trademarks still enjoy protection, b) protecting unregistered trademarks may come closer to the initial and fundamental trademark role, that of an origin indicator, as opposed to registered rights that are slowly shifting to protection for marks with a reputation, and c) unregistered trademarks may be more suitable for today's economic dynamics.

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