104. Marks inadmissible by reason of third-party rights

which resembles, in such a way as to be likely to mislead the public, a mark already validly filed or registered by a third party, or subsequently filed by a person validly claiming priority, in respect of identical or similar goods or services in connection with which the use of such mark may be likely to mislead the public ;

which resembles, in such a way as to be likely to mislead the public, an unregistered mark used earlier in Sri Lanka by a third party in connection with identical or similar goods or services, if the applicant is aware, or could not have been unaware, of such use ;

which resembles, in such a way as to be likely to mislead the public, a trade name already used in

if it is identical with, or misleadingly similar to, or constitutes or translation or transliteration or transcription of a mark or trade name which is well known in Srl Lanka for identical or similar goods or services of a third party, or such mark or trade name is well known and registered in Sri Lanka for goods or services which are not identical or similar to these in respect of which registration is applied for, provided in the latter case the use of the mark in relation to those goods or services would indicate a connection between those goods or services and the owner of the well known mark and that the interests of the owner of the well known mark are likely to be damaged by such use ;

which infringes other third party rights or is contrary to the provisions of Chapter XXXII relating to the prevention of unfair competition ;

which is filed by the agent or a representative of a third party who is the owner of such mark in another country, without the authorization of such owner, unless the agent or representative justifies his action.

particular facts and circumstances relating to each mark ;

any fact or circumstance from which it may be inferred that the mark is well known ;

the degree of knowledge or recognition of the mark of the relevant sector of the public ;

the duration, extent and geographical area of use of the mark ;

the duration, extent and geographical area of promotion of the mark, including advertising or publicity and the presentation at any fair or exhibition of the goods or services to which the mark applies ;

the duration and geographical area of the registration or the application for registration, of the mark, to the extent that they reflect use or recognition of the mark ;

the record of successful enforcement of rights in the mark, in particular, the extent to which the mark has been recognized as being well known, by the

the value associated with the mark ;

the criteria specified in this subsection to determine whether a mark is well known or not shall not be exclusive nor exhaustive ;

for the purpose of this subsection —

“Competent

“relevant sector of public” includes :—

actual or potential consumers of the types of goods or services to which the mark applies ;

persons involved in channels of distribution of the types of goods or services to which the mark applies ;

any person or a body of persons dealing with the type of goods or services to which the mark applies.