Summary

This articles examines definitions of concepts which are relevant from the point of view of implementation of the Estonian Trade Marks Act: the distinctive character of a trade mark, elements of a trade mark which are not subject to protection, the colour combination of a registered trade mark and the duty of the proprietor of a trade mark to use the trade mark.
Further, the author points out several disputable provisions of the Act. According to the author, the grounds for refusal of registration of a trade mark should be specified in the Act as the cases of absence of the distinctive character of a trade mark. The current Act fails to provide the legal definition of the distinctive character. In addition, the Act should prescribe the requirement that a trade mark must be individualised.
The author contests the provision under which a trade mark filed for registration may include elements which are not subject to protection unless this decreases the distinctive character of the trade mark. The existence of such elements of a trade mark does not deccrease the ability of the trade mark to individualise the product of the proprietor of the trade mark.
The author also finds it problematic that the background of a trade mark is regarded as an element of the trade mark.