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A Comparative Study on Japanese Trademark Protection System With The long term fellowship program under WIPO Funds in Trust/JPO January 2003 – July 2003 A Comparative Study on Japanese Trademark Protection System with Iranian Trademark Protection System Prepared by: Zahra Bahraini Industrial Property Office of I.R. of Iran Tokyo-June 6, 2003 Acknowledgement My deepest appreciation to the World Intellectual Property Organization (WIPO) and to the Government of Japan especially to the Japan Patent Office (JPO) and the Asia Pacific Industrial Property Center of Japan Institute of Invention and Innovation (JIII) for funding and organizing this Course; My appreciation to the Registration Organization of Deeds and Properties of I.R. of Iran and Director General of Registration Office for Companies and Industrial Property for giving me this opportunity; My special thanks to all the officers of JPO especially to Mr. Shinichiro Ota, Commissioner of JPO; Mr. Takashi Sakurai, Director of the International Affair Division; Mr. Yuji Okuma, Director of the Regional Policy Office of International Affair Division, Mr. Takaki Hiroo, Deputy Director of the International Affair Division, Ms. Yuka Tsukamoto, Ms. Ai Hamagishi, Ms. Yuriko Homma for warm welcome, assistance, patience, time and friendship; My special, special thanks to dearest staff of APIC; Mr. Shingo Tsuji, Director General of APIC, Mr. Kitazawa, Mr. Sakai, Ms Kinoshita, Ms. Kozawa and many others for their warm welcome and providing me good conditions and assistance for carrying out the research work. My gratitude to Mr. Kanji Kudo, for his advise and support in this research work and many others who are directly or indirectly involved in making this research possible. My sincere thanks to my dearest colleagues in IP Office for their support and patience; Zahra Bahraini I. R. of Iran Table of Contents Chapter I page Introduction Protection of Trademark in Japan and the relation with International Treaties 3 Legal system for protection of Trademark in Japan 3 History of changes in Japanese Trademark system 5 The Legal system for protection of Industrial Property in Iran 7 Functions of Trademark 9 Chapter II 1- Criteria for Protection Definition of a trademark 10 Unregistrable trademarks 11 2- Requirements for trademark registration Unity in application 14 First-to-file rule 14 Collective trademarks 15 Requirements for trademark application 16 3- Examination System Principle of examination by examiner 18 Rejections 19 Decisions to Register 20 4-Trademark Rights Effects of trademark right registration 21 Term of trademark right 22 Registration of Renewals 22 Transfer of trademark right 23 Transfer of Collective Trademark Right 24 Right of Exclusive Use 24 Right of Non-Exclusive Use 25 Prior use 25 Infringement and Injunction 27 5- Opposition System Opposition to Registration 28 Opposition process 30 6- Trials System Trail against examiner’s decision of refusal 32 Trail against ruling to decline amendment 32 Trail for invalidation of a trademark registration 33 Trail for cancellation of a trademark registration 34 7- Defensive marks I. Registrability of defensive mark 35 II. Purpose of Defensive Mark Registration System 35 8- Publication Trademark Gazette 36 9- Re- Classification System I. Purpose of Registration of Re-Classification of Goods 38 II. Registration of Re-Classification 38 10- Protection of Well known and Famous Trademarks Japanese Law 41 Criteria for Determining of Well known and Famous Trademarks 46 Distinction in Trademark Law and Unfair Competition Prevention Law 48 Registration or Actual use as a Condition for Protection 49 Chapter III Administration Procedure of Japanese Trademark Registration System Application 51 Publication of application 51 Formality Check 51 Substantive Examination 52 Decision of Registration 53 Opposition to the Granting of a Trademark Registration 53 Trial System 54 Procedure for the protocol Relating to the Madrid Agreement 55 Remedy against refusal 56 JPO Anti counterfeiting efforts 57 Computer System Use 1) Online Acceptance of Trademark Application 59 2) Real time trademark search and preparation of drafts using electronic data 59 3) On-line of draft documents to applications 59 4) On-line acceptance of demands for trail 60 Trademark Information Provision Services I. Trademark Application Trends 60 II. International Trademark Application Trends 61 III. Trademark Examination 61 IV. Accelerated Examination 61 V. Examination Guidelines for Trademarks 62 Industrial Property Digital Library 63 Chapter IV Differences between two Systems 65 1- Definition of Trademark 65 2- Requirements for Registration 66 3- Changes in Registered Marks 66 4- Prior Use 66 5- Opposition System 67 6- Trials System 68 7- Defensive Marks 68 8- Service Marks 69 9- Restoration of Trademark Rights 69 10- Re-Classification System 70 11- Compulsory registration 70 12- Publication 71 Other differences 71 Recommendations 72 Conclusion 76 “In the name of God” Foreword This research report consists of the comparative study of the major provision of Japanese Trademark Law 1999 (as amended on April 13, 1959, entry into force on April 1, 1960) and Iranian Trademark Law (1931) and its Regulations as amended in 1958. The Protection of Trademarks in Japan is under Trademark Law and Unfair Competition Prevention Law. Japan is a party of various international treaties such as Paris Convention, Nice Agreement, Trademark Law Treaty, and etc… for protection of Trademark. Iran is a party of Paris Convention for protection of Patents and Trademarks and also a member of Madrid Agreement at present. Other related treaties are under consideration. Protection of Trademarks in Iran is under the Trademark and Patent Registration Law and it’s Regulations. The report outline the Introduction and historical development of Japanese Trademark Law as well as Legal System for Protection of Industrial Property in Iran. The major part of the report consist of the comparison of the Japanese Trademark System with Iran Trademark System in all the procedures such as trademark application, the rules and standards required for determining a registrable mark, opposition systems and trails system and etc… as well as the variations between these two systems. There could be a possibilities these related provisions be adopted in her country in moving towards harmonization and unification of the trademark systems but taking into account the diversity of social and cultural aspects. The researcher also looks into Trademark Computer System, a paperless Project by JPO focusing on the need to shorten in the period required in granting a right and increasing the efficiency of processing these rights by virtue of highly advanced information technology. Chapter I Introduction : The intellectual property system is one of the cornerstones of modern economic policy at the national level and a catalyst for development. It will increasingly become an important tool for sustainable development of developing countries, especially the least developed in the knowledge-based society of this millennium. Therefore, understanding the legal and economic foundations of the intellectual property system is a prerequisite for comprehending its increasing importance and role in national strategies for enhancing competitiveness and accelerating socio-economic development. Intellectual property comprises of creations of the human mind, of the human intellect. It consists mainly of two branches, one being industrial property dealing with technological inventions, utility models, trademarks for goods and services, industrial designs, etc.; the other being copyright, which protects literary, musical, artistic, photographic and audiovisual works, films, computer programs and software, etc., as well as related rights, that is neighboring rights, namely the rights of performing artists, producers of phonograms and broadcasting organizations. As far as trademarks are concerned, any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings shall be capable of constituting a trademark (Article 15-1 of the TRIPS Agreement), the same Article provides that such signs, in particular words including personal names, letters, numerals, figurative elements and combination of such signs, shall be eligible for registration as trademarks. The trademark enables its owner or enterprise to build up a reputation for goods offered in relation to that trademark, and compels the owner of the mark to strive to maintain and improve the quality of goods or services offered under the mark. The exclusive right of the owner of a mark precludes others from using it. Marks have an increasingly important role in a country’s commerce and trade as they stimulate economic progress. 1 Nowadays, there is a growing awareness that intellectual property rights protection is a crucial part of the new global trading system. International trade in goods and services protected by intellectual property rights is increasing, and both developed and developing countries have recognized that it is in their interest to provide strong intellectual property rights protection in order to participate in the benefits of such trade. Strong intellectual property protection with adequate and modernized legislation and its effective enforcement is essential for ensuring economic growth. Since the Japanese trademark jurisprudence is conceptually well-developed, fascinating body of law with a long and rich tradition, so it has been considered as a model for this research study. 2 Protection
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