Trademark registration and bad faith: the systematization of the concept of bad faith in Comparative law

Abstract

Several legal treaties, such as the Paris Convention, the Pan-American Convention, and the MERCOSUL Trademark Harmonization Pro­tocol, aim to regulate the effects of trademark filings. These treaties seek to address situations where applicants, with knowledge of the exis­tence of a conflicting prior trademark, attempt to register their own trademark in bad faith. This article seeks to systematize the scope of bad faith in trademark law by considering decisions from the European Union Patent and Trademark Office, the General Court, and the Court of Justice of the EU. Additionally, it examines decisions from French, Spanish, German, North American, and British courts. Finally, the article explores case law in Brazil, focusing on claims not subject to stat­utes of limitations that can be filed within federal courts to adjudicate or revoke trademark registra­tions. The article applies a functional approach in comparative law, inaugurated by Ernest Rabel, to investigate judicial decisions. The study of comparative law reveals the ne­cessity of expanding the concept of bad faith in Brazil, integrating it with the theory of abuse of rights.