{"id":2950,"date":"2021-12-10T13:17:50","date_gmt":"2021-12-10T13:17:50","guid":{"rendered":"http:\/\/aaalaw.lv\/insights\/landmark-case-on-rights-to-take-legal-action-to-disclaim-elements-of-a-trademark\/"},"modified":"2022-10-26T12:36:32","modified_gmt":"2022-10-26T12:36:32","slug":"landmark-case-on-rights-to-take-legal-action-to-disclaim-elements-of-a-trademark","status":"publish","type":"insights","link":"https:\/\/aaalaw.lv\/en\/insights\/landmark-case-on-rights-to-take-legal-action-to-disclaim-elements-of-a-trademark\/","title":{"rendered":"Landmark case on rights to take legal action to disclaim elements of a trademark"},"content":{"rendered":"","protected":false},"featured_media":1449,"parent":0,"menu_order":0,"template":"","services":[20],"topics":[72],"class_list":["post-2950","insights","type-insights","status-publish","hentry","services-trademarks-design","topics-insights"],"acf":{"insights_1_short_description":"Continuously we have relied on the findings of the case-law established by the Supreme Court (Judgment of 9 May 2001 in Case No. SKC 239\/2001 and Judgment of 25 February 2009 in Case No. SKC 61\/2009) concerning rights to take legal action to disclaim elements of a trademark and clear any doubts of scope of the rights. In fact, such practice had become consistent and stable.","insights_1_description":"Continuously we have relied on the findings of the case-law established by the Supreme Court (Judgment of 9 May 2001 in Case No. SKC 239\/2001 and Judgment of 25 February 2009 in Case No. SKC 61\/2009) concerning rights to take legal action to disclaim elements of a trademark and clear any doubts of scope of the rights. In fact, such practice had become consistent and stable.\r\n\r\nHowever, the latest judgment of the Supreme Court in civil case No. C30396320 on ancillary complaint, claiming disclamation of the element 'CITRAMONS' from the marks 'OL CITRAMONS', changed the long-established case-law. In accordance with the judgment, <strong>there is no longer a possibility to take a legal action to the court to disclaim elements of a trademark.<\/strong>\r\n\r\nIn this civil case, P\u0113tersona Patents - AAA LAW represented JSC \"Nizhny Novgorod Chemical-Pharmaceutical Plant\" (the Plaintiff). The court did not agree with the Plaintiff\u2019s arguments and rejected both the ancillary complain and the action. The court based its judgment on the following findings:\r\n<ul>\r\n \t<li>Grammatically and systematically translating legal norms, it can be concluded that the legislator has provided the Patent Office the rights to disclaim certain elements of a trademark. Additionally, the legislator has chosen to include such Article regulating disclamation directly in the chapter regulating the procedure of the Patent Office;<\/li>\r\n \t<li>Disclaimer of elements cannot be within the competence of the court, because the court adjudicates civil disputes, wherein civil rights or interests are contested or infringed (it should be noted that the decision in this case was taken before the Constitutional Court in Case No. 2020-08-01);<\/li>\r\n \t<li>Disclamation neither grants nor subtracts nor amends rights of the person. Disclamation has only an informative or educational function, that is why it does not lead to a refusal to register a trade mark or some part of it. The Court explains that the purpose of disclamation is to indicate which element is not distinctive, but that does not mean that the mark in general lacks distinctiveness;<\/li>\r\n \t<li>Disclaimers cannot even be taken into account in trade mark disputes, because it cannot be considered in advance that descriptive elements of the conflicting marks should be excluded from assessment of similarity;<\/li>\r\n \t<li>In the event of dispute, Courts are obliged to assess nature of the trade mark individually, depending on the subject matter and considering elements of the trade mark as a whole. For example, it must be determined whether any of the absolute grounds for invalidation of a registered trademark exists, or what is the degree of distinctiveness of the earlier trademark when assessing the likelihood of confusion.<\/li>\r\n<\/ul>\r\nThis landmark case brings Latvian trademark practice closer to the regulatory framework of European Union trademarks, since the new Regulation No 2017\/1001 no longer includes references to disclaimer. Therefore, abandonment of disclamation following the Supreme Court\u2019s judgment points in the direction of a unified regulatory framework.\r\n\r\nThe Plaintiff in this case was represented by the trademark attorneys <a href=\"https:\/\/petpat.lv\/en_lv\/employee\/gatis-merzvinskis\/\">Gatis Mer\u017evinskis<\/a> and <a href=\"https:\/\/petpat.lv\/en_lv\/employee\/kristine-ostrovska\/\">Krist\u012bne Vil\u0137ina<\/a>.","insights_1_authors":[2503],"insights_2_type":"Sticky","insights_2_title":"","insights_2_button":"","insights_2_hidden":true},"_links":{"self":[{"href":"https:\/\/aaalaw.lv\/en\/wp-json\/wp\/v2\/insights\/2950","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/aaalaw.lv\/en\/wp-json\/wp\/v2\/insights"}],"about":[{"href":"https:\/\/aaalaw.lv\/en\/wp-json\/wp\/v2\/types\/insights"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/aaalaw.lv\/en\/wp-json\/wp\/v2\/media\/1449"}],"wp:attachment":[{"href":"https:\/\/aaalaw.lv\/en\/wp-json\/wp\/v2\/media?parent=2950"}],"wp:term":[{"taxonomy":"services","embeddable":true,"href":"https:\/\/aaalaw.lv\/en\/wp-json\/wp\/v2\/services?post=2950"},{"taxonomy":"topics","embeddable":true,"href":"https:\/\/aaalaw.lv\/en\/wp-json\/wp\/v2\/topics?post=2950"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}