O princípio do Secondary Meaning no direito de marcas | 2012

Author(s) Joana Aurora Machado Barros Fernandes
Advisor(s) Luís Couto Gonçalves
Year 2012

Synopsis Trademarks play nowadays an essential role in the marketplace as they identify the seller’s goods, they allow the consumers to make a conscious choice and they also enable freedom of competition. Thus, to become a trademark a term must be able to perform the function of identifying the origin of the product and distinguish it from the source of products sold by other competitors. Nevertheless, even when a trademark is not inherently distinctive, there is always an actual possibility of acquiring distinctiveness subsequently as a result of the term’s usage, which can be more or less intense and more or less extended and, consequently, in the buyers’ mind this term then turns into the identifying mark of a certain seller’s goods. At this point, the term acquires a secondary meaning, in addition to its primary meaning, which is the result of a change in the buyers’ perception of the original designation. The doctrine of secondary meaning then arises to grant legal protection to this consumers’ insight, to the psychological effects that the term’s application generates and to the different significance that emerges, what allows the term, at first indistinctive, to rise up to trademark status. The purpose of this essay is to investigate all the existing terms in the marketplace as to probe their aptitude to develop a secondary meaning, and also to analyze the registration sphere, since this different meaning can emerge both before and after trademark registration. After these assertions, it’s crucial to consider the necessity of proving secondary meaning and to outline some different kinds of proof allowed at trial.

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