A proteção ao uso de marca de fato no sistema de aquisição da propriedade da Lei 9.279/96

Abstract

This dissertation examines the protection given to the unregistered trademark in the ownership acquisition system under the Law 9.279/96 (Industrial Property Law). Toe first part of this work describes the legal evolution of the declarative, attributive and mixed acquisition systems of trademark rights. It analyses the theoretical interpretations on the protection given to the use of unregistered and registered trademark in those systems. Toe scope is to demonstrate that a trademark cannot be object of possession. If the legal definition of possession does not apply to the trademark use, the ownership is not aquired before the registration neither by possession with intention of aquire, nor by prior use. The trademark ownership is aquired by a formal public and exclusive act, essential to the property right existence and to its advanced defense. Defined the way of acquiring the trademark ownership under the system of the Law 9.279/96, the second part of this work describes the fact supports and the content of generic forms of protection of the unregistered trademarks use: the repression of unfair competition and of fraudulent registration of trademark and the right of precedence of registration, treated in the first paragraph, article 129 of the Law 9.279/96. It identifies the coincident scope of the specific protection of registered trademark (property right) along with the generic protection of a trademark use: to promote the free concurrence. It describes the incidence of property laws and concurrence relation standards on the use of trademarks, classifying the system as attributive. The trademark ownership is acquired only by registration but not to be against to the generic protection standards of registered trademarks is tbe validíty condition to the trademark registration and use