The following is the text of revised draft Article 2, combining the substance of former Articles 2 and 3, as prepared by the International Bureau and submitted to the first session of the Standing Committee for discussion:
It is recognized that protection for well-known marks must be provided, under the Paris Convention for the Protection of Industrial Property and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), by Parties that are bound to apply the relevant provisions of those treaties. For the purposes of that protection and Articles [4 to 6], a Party shall apply the following provisions in determining whether a mark is a well-known mark in its territory:
(1) [Relevant Sector of the Public] (a) It shall be sufficient, for a mark to be considered to be a well-known mark in the territory of the Party, if that mark is well known in a relevant sector of the public in that territory. Relevant sectors of the public shall include, but shall not necessarily be limited to:
(i) actual and potential consumers of the type of goods and/or services to which the mark applies;
(ii) persons involved in channels of distribution of the type of goods and/or services to which the mark applies;
(iii) business circles dealing with the type of goods and/or services to which the mark applies.
(b) Notwithstanding sub-paragraph (a), a Party shall be free to determine that a mark is considered to be a well-known mark in its territory, even if it is not well known in a relevant sector of the public.
(2) [Factors for Consideration] (a) All circumstances from which it may be inferred that the mark is well known shall be taken into account.
(b) The competent authority of the Party shall consider information submitted to it with respect to factors from which it may be inferred that the mark is, or is not, well known, including, but not limited to, information concerning the factors listed in Annex I.
(c) The factors in Annex I, which are guidelines to assist the competent authority of the Party to determine whether the mark is a well-known mark in its territory, are not pre-conditions for reaching that determination. Rather, the decision in each case will depend upon the particular circumstances of that case. In some cases all of the factors may be relevant; in other cases some of the factors may be relevant; in still other cases none of the factors may be relevant. Additional factors that are not listed in the Annex may be relevant, alone, or in combination with one or more of the factors listed in the Annex.
(3) [Factors Which Shall Not Be Required] (a) A Party shall not require:
(i) that the mark be registered or used in, or in respect of, the territory of the Party;
(ii) that the mark be well known in any territory other than the territory of the Party; or
(iii) that the mark be well known by the public at large in the territory of the Party.
(b) Notwithstanding sub-paragraph (a)(ii), a Party shall be free to determine that a mark which is not well known in its territory is nevertheless considered to be a well-known mark in its territory, on the grounds that the mark is well known in one or more other territories.
The factors referred to in Article 2(2)(b) include, but are not limited to, the following:
1. the degree of knowledge or recognition of the mark in the relevant sector of the public;
2. the duration, extent and geographical area of any use of the mark;
3. the duration, extent and geographical area of any promotion of the mark, including advertising or publicity and the presentation, at fairs or exhibitions, of the goods and/or services to which the mark applies;
4. the duration and geographical area of any registrations, and/or any applications for registration, of the mark, to the extent that they reflect use or recognition of the mark;
5. the record of successful enforcement of rights in the mark, in particular, the extent to which the mark was recognized as well known by courts or other competent authorities;
6. the value associated with the mark.