Elements of common use in Andean community law

Abstract

Despite that the elements of common use constitute a usual component of the distinctive signs that identify products or services in commerce, currently there is no specific and clear definition of what these elements are. The Court of Justice of the Andean Community, the registry offices and national judges have analyzed these elements from a doctrine that is not consistent with the community jurisprudence, which has generated serious legal inconsistencies.

This has led to pronouncements that in some cases can be confusing and contradictory by national and supranational entities, where not only it has mixed concepts and different ones, but also has approached them in ways that are not rigorous and do not correspond to the reality of the market.

The purpose of this article is: 1) To highlight the contradictions that arise in the doctrine and jurisprudence regarding the definition, classification and the way in which the elements of common use are analyzed. 2) Propose a consistent definition of common use elements. 3) Establish a classification of said elements. 4) Suggest an approximation of criteria for requests regarding trademark registration that include such elements.