Legal Problem of providing trademark protection in the form of gesture as advertising gimmick

Abstract

             This abstract is a part of thesis “Legal Problem of providing trademark protection in the form of gesture as advertising gimmick” This purpose of this thesis is to study the ideas and theories on the protection of trademarks, specifically by studying the legal frameworks for the protection of trademarks in the context of advertising gimmick. This includes the literature review of various legal frameworks on trademarks protection under both international legal mechanisms, such as TRIPS Agreement and Paris Convention, domestic legal frameworks, such as trademarks laws from countries such as the United States, the United Kingdom, and Australia. The Thesis seeks to provide possible solutions and recommendations from the lessons learned from the comparisons of different legal doctrines and perspectives on the topic of advertising gimmick. This approach will focus the comparison between international legal mechanisms, domestic legal frameworks from various countries, and Thai legal perspectives.

             The study found that the standard for trademarks protection in Thailand focuses on two points in particular. Firstly, Thai legal doctrine requires the trademark to be a ‘mark’; Thai law specifically limits the scope of definition of the applicable ‘mark’, resulting in very narrowed definition which the law recognizes, while other ‘marks’ that do not fit the definition provided will not receive recognition. This is different from other nations’ doctrines which do not have such a specific definition; instead they focus on other major principles and matters. Secondly, specificity will allow the consumers to identify products or services from various providers. This is for the protection of trademarks to applicable in as many areas as possible.

             From the findings, the principles on the protection of trademarks founded within both international legal mechanisms and other jurisdictions’ jurisprudence that the limiting measure on the scope of terminology and definition was never implemented This resulted in the protection of rights of some ‘marks’ with significance defining factors. The Author has the opinion that Thailand should amend the definition under Article 4 and the rules on proof of defining factors, so that other ‘marks’ that are qualified may receive protection and status as trademarks.