Protection of Well-Known Marks

Abstract

Trademarks are internationally recognized and protected intellectual property rights. Consumers are able to distinguish the source of goods by recognizing their trademarks. Therefore trademarks can protect them from being confused by similar but inferior products. Also, trademarks can help manufacturers promote and merchandize their products more effectively. Corporations are no longer satisfied with traditional trademarks like words and two-dimensional designs.

The United States, the United Kingdom and European Union, to say the least, are good examples of countries that all have their own regulatory regimes. They have been consistently developing to incorporate the rapid social and economic changes in the world.The regulatory regimes on trademarks have many differences, although they share a lot of common characteristics of trademarkable subject matter, distinctiveness, and functionality.The world is seeking a better regulatory framework in respect of protection of well-known trademarks because it arguably has more intrinsic value in its advertising function than normal trademarks.

The concept of trademarks has evolved as a result of this era of globalization and technological advancement and trademarks have become symbols that can fetch huge commercial value. As laws in each different jurisdiction and countries develop incrementally, so has the number of well known marks increased exponentially. Naturally, the increasingly competitive markets would bring on spiralling effect on creative trading methods by market players, sometimes to circumvent the breaching of any laws, and hence this would lead to the question of whether local trade mark laws is adequate in protecting well known marks.

Therefore, this paper aims to study by way of comparison, from a Malaysian perspective, the policies of the United States, the United Kingdom, and Malaysia on issues of protection of well known marks. Based on this study and comparison, it was found that judging the level of well-known of a mark is not clear cut, but rather entails a multi-factor balancing process. This paper further discusses on the recent landmark case of McDonalds Corp v McCurry and finally ends with recommending that Malaysia needs to enact or further trademark laws to address the growing concern of dilution in order to afford a balanced protection between local marks and well known marks through the aforementioned balancing process.