Delimitation Agreement Definition
Trademark delineation agreements are concluded to prevent or resolve disputes between conflicting trademark holders by identifying areas in which trademarks can be used. The authors of this article deal analytically and critically with the jurisprudence and literature relating to the conflict between trademark delimitation agreements and the provisions of the treaty relating to the free movement of goods and competition. They propose that the Commission and the Court of Justice accept delimitation agreements that create fewer trade and competition restrictions than in the absence of the agreement compatible with Article 85 of the EEC Treaty, provided that the restrictions arising from the agreement fall within the specific purpose of the trademarks. Through a highly pedagogical structure, the authors construct the book into four major chapters devoted to the main characteristics of maritime delimitation, general conventional norms, delimitation agreements and judicial contribution to maritime delimitation. 52. As in the case of geographical delimitation, the value of the good if lost is generally low; our comments in paragraph 4 above apply mutatis mutandis. 51. Products reserved for companies X and Company Y do not necessarily have to be similar. Some Member States, including the Benelux countries, also allow a trademark holder to prevent the marketing under its brand of products that do not correspond to those for which the trademark is registered, e.g. B art. 13 A (2) of the single benelux law on trademarks (Eenvormige BenehixMerkenwei). The Trademark Directive (19/104 O.J. L40/I Directive of the Council 1989) authorizes Member States to: provide that „the holder has the right to prevent all third parties who do not have his consent from using, in the course of commercial transactions, a sign which, with or similarly to the mark, unfairly exploits or alters the distinctiveness or reputation of the mark with respect to goods or services that do not resemble those for which the trademark is registered in the Member State and where the use of that sign, without diabolical grounds, exploits or alters the distinctiveness or reputation of the mark in an unfair manner“ (Article 5, paragraph 2).
The same provision was included in the Council`s amended proposal for a regulation on the Community Mark (Com (84) 470 final). The delimitation agreements reviewed by the Commission and the ECJ addressed all risks of confusion (alleged) between trademarks used for similar products (with the exception of Hershey/Herschi). However, we believe that the principles developed in these cases could, mutatis mutandis, apply to delimitation agreements that eliminate a risk of dilution associated with the use of similar brands for different products.