Consideraţii privind repararea prejudiciului cauzat titularului unei cereri de înregistrare a unei mărci
Considerations regarding the reparation for the damage caused to the holder of an application for the registration of a trademark

Summary/Abstract: Less analysed within the legal literature, the protection enjoyed by the holder of a trademark registration application up to the moment of the publication of the registered trademark raises several issues. The subject matter of this article focuses on the analysis of the sui generis nature of the legal protection granted to the holder of an application for registration of a national trade mark (pursuant to the provisions of the Law no. 84/1998) or an EU trade mark [pursuant to the provisions of the Regulation (EU) 2017/1001] during the in statu nascendi period of the life of a trade mark (from the moment of the publication of the trade mark application to the moment of the publication of the registered trade mark). This article will present the variable legal content of the protection granted to the holders of applications for the registration of national or EU trade marks against the unlawful actions taken by third parties until the completion of the trade mark registration procedure materialized by the publication of the registered trade mark. In addition, specific references to some particular forms of legal protection acquired prior to the filling of the trade mark application and the publication of the latter (resulting from the actual use of a sign in the commercial activity of an individual until the moment of publication of the trade mark application submitted for that sign or, in some specific cases, even in the absence of such registration application) will be further developed (as is the case of the protection conferred by the trade name or the protection under a claim of unfair competition). From this perspective, the analysis will focus – from a normative, theoretical and practical perspective – on the following aspects: the limited active legal protection of the holder of the application for the registration of a trade mark, mainly consisting in the legal recognition of a right to damages (according to Law no. 84/1998) or, as the case may be, of a right to reasonable compensation [in accordance with the provisions of the Regulation (EU) 2017/1001 and in the light of the guidelines laid down by the Court of Justice of the European Union within the judgment delivered in case C 280/15]; considerations regarding other forms of active legal protection in the pre publication stage of the trade mark application; the limited passive legal protection related to the stage prior to the publication of the trade mark application. Last but not least, several conclusions will also be drawn, including some de lege ferenda proposals on the correlation between the limited legal protection recognized during the “embryonic” period of the trade mark and the complete legal protection granted to the proprietor of a registered trade mark.

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