uu.seUppsala University Publications
Change search
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • ieee
  • modern-language-association
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf
Distinctive Character Acquired Through Use: A Comparative Analysis between European Union Law and Brazilian Law
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law.
2018 (English)Independent thesis Advanced level (degree of Master (One Year)), 20 credits / 30 HE creditsStudent thesis
Abstract [en]

This essay is dedicated to the study of the distinctive character acquired through use of a sign. First of all, a brief background of the trade mark is presented, followed by an elucidation of the concept of trade mark, and the explanation of the requirements for a trade mark registration. In this context, it is highlighted that distinctiveness is the most important requirement for a trade mark registration, which means that a sign shall not be registered if it lacks distinctive character. Nevertheless, a sign may acquire distinctiveness through its use. The definitions, legal provisions and requirements to prove the distinctive character acquired through use are then shown and discussed, as well as the assessment of the evidence to prove them, and the administrative procedures and proceedings before the Courts, according to the EU approach, followed by the analysis of this subject in the case of product shapes. After that, the acquisition of the distinctive character acquired through use according to the Brazilian approach, where the phenomenon is called secondary meaning, is presented and discussed. The essay also discusses the lack of specific provisions in the Brazilian Industrial Property Law concerning to the secondary meaning and the applicability of the provisions of the Paris Convention in order to recognise the secondary meaning theory in Brazil. Furthermore, a comparative analysis between the European Union law and the Brazilian law is presented, analysing the most relevant similarities and differences between both approaches, taking into account the understandings of prominent scholars, the legal systems applied, and case-law, in the European Union and in Brazil, which were considered in the previous chapters, in order to enhance knowledge on this subject. Lastly, the final considerations conclude that, in spite of similarities and differences verified in the legislations studied, the distinctive character acquired through use of a sign may be recognised in both approaches. In addition, as a suggestion, an amendment in the current Brazilian Industrial Property Law is proposed, in order to rule the applicability of secondary meaning.

Place, publisher, year, edition, pages
2018. , p. 69
Keywords [en]
Distinctiveness, Distinctive Character Acquired through Use, Secondary Meaning, Trade Mark Registration, Legislation, European Union, Brazil, Comparative Analysis
National Category
Law
Identifiers
URN: urn:nbn:se:uu:diva-353687OAI: oai:DiVA.org:uu-353687DiVA, id: diva2:1218654
Educational program
Master Programme in Intellectual Property Law
Supervisors
Examiners
Available from: 2018-07-02 Created: 2018-06-14 Last updated: 2018-07-02Bibliographically approved

Open Access in DiVA

No full text in DiVA

By organisation
Department of Law
Law

Search outside of DiVA

GoogleGoogle Scholar

urn-nbn

Altmetric score

urn-nbn
Total: 83 hits
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • ieee
  • modern-language-association
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf