We understand and agree with the reasons that lead the trademark system to broadly protect the well-known or renowned brands. In fact, we believe that this is convenient to prevent some speculators use a certain foreign brand built on the basis of effort and investment, thus managing to dilute it and take away its value.
However, the aforementioned protection deserves to be carefully analyzed when the well-known mark is not widely known in Argentina or it is not operational in our country nor has it been for many years.
Here we are faced with a dilemma that could be understood as a “zero sum” dilemma, which links the trademark law with the defense of competition: ponder if the protection regime prevails distinctive elements of the well-known brand, or if appropriate, minimize the effects of the regulation to avoid that a restriction of access to the market is generated through the trademark application mechanism.
Taking concepts expressed by the case-law, we understand that in these cases the carrying out a case-by-case analysis – weighing the characteristics of the opposing parties, their activity in the market, the degree of local knowledge of the trademark sign, its constant diffusion and promotion, its consolidated penetration in the market, the distinctive elements of the brands, etc.- becomes necessary to carry out a peaceful interpretation of the “dilution” of well-known marks in light of the defense of competition.