What is the importance of the reputation of a trademark?

Throughout trademark law, the reputation of a trademark plays an important role:

  • trademarks that are intrinsically descriptive (e.g. geographical brand names in the beer sector) may have become well-known through years of intensive use and thus may have acquired a distinctive character. Through long and intensive use, a descriptive trademark can become distinctive and thus be accepted for registration.
  • trademarks with a reputation enjoy a broader scope of protection: the proprietor of a trademark with a reputation may, under certain circumstances, oppose a similar trademark for other types of products if, e.g. the latter trademark takes unfair advantage of or is detrimental to the repute of the earlier mark.

e.g. the trademark ‘KING’ for condoms was considered an infringement of the well-known ‘KING’ for peppermints

  • well-known trademarks (such as GOOGLE, MICROSOFT, APPLE, NESTLÉ) enjoy even broader protection: in theory, they do not even have to be registered and the proprietor can oppose the use of the trademark for completely different products.

Given the importance of reputation, brantsandpatents strongly advises you to carefully preserve evidence of reputation, such as press articles, awards, market share studies, evidence of sponsorship activities, media advertising campaigns, etc.

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