CLAIM FOR USUAL COMPENSATION ACCORDING TO THE TRADEMARKS ACT AND THE NEW TRADEMARKS ACT PROPOSAL

Abstract

Claim for usual compensation is one of several ways in which civil law protection of trademarks is provided under the European and Croatian law. The right to this claim is stipulated by Article 78 para. 2 of the Trademarks Act and Article 129 para. 5 of the new Trademarks Act Proposal. Since the claim for usual compensation is not the only way of trademarks protection, a legal question arises as to the relation of such a claim to other claims, specifically to the damages claim and the claim arising out of gains without legal foundation. In addition to the relation of the claim for usual compensation to other similar claims, a standpoint is that the rules on gains without legal foundation apply to the claims for usual compensation, which makes the trademark holder’s procedural position easier. Regarding determination of the usual compensation, the paper refers to the importance of various circumstances (e.g. the trademark reputation and the common profit margin) paying attention to quota licenses. Finally, the paper elaborates on the issues of difficulties in proving violations of trademark holder’s exclusive rights and the amount of the usual compensation. In this regard, it focuses on the issues of data provision claim and taking of evidence claim under the Trademarks Act and the new Trademarks Act Proposal.