First-To-File Principle Problems in Trademark Law: Enhancements of Dispute Settlement
Bebeto Ardyo
University of Surabaya (UBAYA)
Abstract
Nowadays, legal protection relating to the trademark rights is becoming a problem that attracts the attention of many people. Not only on a national scale, the rapid development of technology and globalization have also demanded the law to provide protection of trademark rights across national borders. One form of protection is through the "First-To-File" principle that used in the process of registering trademark rights where the person entitled to the mark is the person who first registers the mark. The "First-to-File" principle is intended to guarantee certainty of the law but on the other side, it has risen another problem which is the beneficial and fairness of certain parties who apparently have used the mark first. If it comes to cases of disputes in Indonesia and most countries that use the “First-to-File” principle, trademark users are only protected if they have registered the trademark rights which causes disadvantages to those who haven-t registered the trademark rights, but have used their trademark first or even if their trademark are the well-known marks. This paper aims to examine the possible ways for the enhancements of trademark rights dispute settlement, which is inspired by a common law doctrine called "Passing Off" which gives the possibility to provides protection to unregistered trademark users over the registered ones.
Keywords: Rights, Trademark, First-To-File, Dispute Settlement
Topic: Trade and Business