SECONDARY MEANING IN TRADEMARK MATTERS AS A STRATEGY TO INHIBIT ECONOMIC COMPETITION

Abstract

This research in the first place analyzes and explains what is a trademark in a general approach; and then, form the constitutional foundation in article 28 how this figure plays a role as an exception of the monopolies in a market economy. The first part of the pepper is focused on the definition of distinctiveness, which is also a legal requirement contained in the current Protection of Industrial Property Federal Act, in that law it is established the secondary meaning as an exception, which causes that in the end the figure becomes an illegal monopoly. All of that brings the effect that it is possible to acquire a trademark in all the normative cases as an exclusive right that it should not be recognized in the beginning, because many owners of the trademark rights uses the figure of distinctiveness as a tool to inhibit the economic competition, permitting them to be out of the parameter that justifies the monopoly of the trademarks, which is by the way the distinctiveness in the market as a product or service.