The Validity of Trademark Use on Digital Platforms. An Interpretive Approach to Current Chilean Regulations

Abstract

Industrial Property Law No. 19,039 establishes the possibility of extinguishing the registration through a revocation action due to the lack of actual and effective use of the trademark in Chile. However, the law does not specify whether the use of the trademark on digital platforms meets this requirement, which poses new regulatory challenges for the legal system, given that the digitalization of commerce has transformed the way distinctive signs are protected and used. This reveals a legal gap regarding the validity of the digital use of trademarks in search engines, online advertising, and e-commerce platforms. This study seeks to analyze the regulatory gap regarding trademark use on digital platforms in Chilean law and what criteria could be adopted to ensure adequate protection. To achieve this objective, the experiences of the European and American systems are examined, comparing them with the national legal system, and thus clarifying the most appropriate model in the current context, where the protection of the trademark right holder is balanced against the evolving nature of digital commerce. In the case of Chilean law, in the absence of express regulation, certain clear interpretative criteria are proposed for applying current legislation to new digital contexts. We base our analysis on the principles of territoriality, the purpose of use, and the distinctive function of the trademark to recognize the validity of digital trademark use without the need to amend current legislation.