B.
Tradename
and Trademark Infringement
If
the domain name registration involves a commercial use,
it may be an infringement of a tradename of an existing
tradename. Commercial use must be involved. Generally,
mere registration is not sufficient grounds for infringement.
(1)
Trade
Name Infringement Factors include:
(a)degree
of similarity between the marks in appearance and suggestion
(b)similarity of products or services being offered
(c)area and manner of current use
(d)degree of care likely to be exercised by consumers
(e)strength of complainants mark
(f)actual confusion
(2)
Case
Example: In Intermatic v Toeppen, a United States case,
the intent on the part of alleged infringer was to palm
off his products as those of another, the Court stated
that the issue is not whether mark will be confused
but whether use of similar mark will cause consumers
to confuse source of goods or services with those of
the senior mark owner. Intermatic v Toeppen 947 F. Supp.
1227 (N.D. Ill. 1996) at 1235
(3)
Dilution
Statutes: Dilution Statutes protect the value of a trademark
and can be used in addition and in concurrence with
infringement actions. Statutes allow for Injunction
against another's use in commerce of a mark or trade
name if such use begins after the original owner's mark
has become famous and the new mark or tradename causes
dilution of the distinctive quality of the mark: Factors
used in determining whether dilution has occurred:
(a)Inherent
distinctiveness of the mark
(b)Duration or extent of use of mark in connection with
goods
(c)Geographical extent of trading area
(d)Channels of trade where used
(e)Degree of recognition of mark in channels of trade
(f)Nature and extent of use of same or similar marks
by third parties.
(g)Was mark registered?
C.
Copyright
Act and Infringement
(1)
General
Principles: A copyright is a statutory right that gives
the owner of original artistic works the exclusive right
to publish and reproduce the work, and prepare other
works from the original work.
In Thailand the author of a work is automatically entitled
to copyright upon the creation of a work without filing
a registration. However, to come under the Thai Copyright
Act of BE 2537 (1994) the work must be advertised, unless
the person is a Thai National or the national of a nation
that is a signatory to International Copyright Convention
to which Thailand is a party.
If a person adapts, distributes, copies, prepares a
derivative work, displays, records or publishes another's
copyrighted work without a license to do so, that may
be an infringement of that person's copyright.
(2)
Doctrine
of Fair Use: The doctrine of fair use provides various
exceptions that allow for the fair use of another's
copyrighted work. Generally stated, these exception
include:
(a)research
(b)criticism
(c)news reporting
(d)teaching plus four-part test
