Recommended Reading: Aaron and Nordemann: The Concepts of Trademark Use in the EU and the USA
Tara M. Aaron and Axel Nordemann consider the role of trademark "use" in the United States and the European Union, in "The Concepts of Use of a Trademark Under European Union and United States Trademark Law." Of course, "use in commerce" is a fundamental principle in American trademark law, the Constitutional keystone of the federal registration system. In the European Union, registration is available without actual use of the mark, and revocation may occur only after five years if a third-party challenges the registration for non-use. But the systems differ not only in technical aspects but in underlying philosophies, and the authors explain and evaluate the many differences.
The legal differences between the concept of use in the United States and in the EU are not merely technical. While in the United States, generally, "the owner of a mark may not monopolize markets that his trade has never reached," this may be possible in the EU In this article, we will look at the European and U.S. treatments of "use" as a trademark concept and consider which (if either) is better, and why.
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The European registration-based system is a natural result of a philosophy of open and equal competition across the Community. The U.S. use-based system is a direct result of the United States Constitution and the understanding of trademarks as nothing outside of an identifier of source for goods or services and primarily a method of protecting the consuming public from confusion. Both systems require use to a lesser or greater extent, and both systems are flexible in varying degrees. But the differences are stark and only become greater as the trajectories of these different philosophies become clear.
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TTABlog note: Again I thank The Trademark Reporter for granting permission to provide links to this article, which is Copyright © 2014 the International Trademark Association and reprinted with permission from The Trademark Reporter®, 105 TMR No. 6 (November-December 2014).
Text Copyright John L. Welch 2015.