engleski

Accesorrity of a Trade Mark in Property Right Dispositions

For a long time during its existence as a property right, a trademark was accessory to the undertaking (i.e. business) in connection with which it was created and in which it was used. Owing to that, the transfer of a trademark without the undertaking or goodwill was prohibited, and licenses were not allowed. In the transitional period towards a complete emancipation of a trademark from the undertaking (i.e. business), licenses were allowed, but only conditionally. The indirect permissibility of licenses was based on the understanding that the licensee acts under the complete control of the owner of the trademark. The harmonization of the trademark law at the European Union level has led to the complete separation of a trademark from the undertaking, i.e. to the application of the principle of non-accessority. No limitations of the property right dispositions with a trademark, the purpose of which would be to prevent the public being misled as a result of the license or the transfer of a trademark without the undertaking, have been provided for. Whereas today a trademark is multifunctional and whereas consumers do not take it only as an indication of the origin of a product but have attributed to it many other functions, there is no danger of the transfer of a trademark without the undertaking and of licenses. It may not be asserted that an a priori prohibition or control by the bodies maintaining trademark registers would protect the public from deceptive trademarks. Today, the public is aware of the fact that property right dispositions with trademarks take place. At the same time, it is not interested in the precise origin of a product or service, but in a certain quality and other characteristics of the product or service designated by the trademark. Therefore, it is the owner of a trademark and the persons acquiring the right of exploitation in the course of trade who have to take care of the reputation and perception of a trademark.

business, trademark, trademark functions, trademark license, trademark transfer,

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