Trade Mark Protection and Undistorted Competition

Abstract

The system of undistorted competition in the sense of Article 3(g) of the EC Treaty is the primary-law basis for trade mark protection in the European Community. In the judgment HAG II, the European Court of Justice, in its interpretation of the provisions governing the free movement of goods, took up the guiding concept that a trade mark has the purpose of preserving undistorted competition and acknowledged the exclusive effects of national trade mark rights under the primary law of the EC Treaty. On the secondary-law level under the Trade Mark Directive, this principle has since become a superordinate scale for interpreting the provisions of European trade mark law. This has resulted in a case law that generally defines the requirements for protection of a mark strictly, with consideration of the public interest in free availability of signs, that measures an exact scope of protection in the light of the guarantee of origin and that tends to interpret broadly the limits to protection in the interest of the free movement of goods and services. The expanded protection of trade marks having a reputation, with the rules of interpretation developed by the European Court of Justice, also fits in with this overall concept.

Keywords: EC Treaty, Treaty of Lisbon, Undistorted Competition, European Court of Justice, Trade Mark Law, Trade Mark Directive, Community Trade Mark Law