Trademark Transactions in EU Law – Refining the Approach to Selective Distribution Networks and National Unfair Competition Law
Given the rudimentary nature of the current set of EU rules, the regulation of trademark transactions in the EU depends on a harmonious interplay of harmonized EU law on the one hand, and individual national laws on the other. This configuration of the system places a particular responsibility on the Court of Justice of the European Union. Interpreting harmonized EU rules, the Court ought to consider the impact of its decision on the proper functioning of national law. An overambitious approach seeking to maximize the harmonizing effect of the rudimentary set of EU norms will almost inevitably lead to unsatisfactory results. After a short overview of EU objects of property rules and present amendment proposals, two decisions of the CJEU will be brought into focus to illustrate this point. The decision in Copad/Dior gives rise to concerns about harmonized rules in the Trade Mark Directive becoming a straitjacket offering insufficient breathing space for the reconciliation of licensor, licensee and third party interests, while the case Martin Y Paz/Depuydt sheds light on the potential corrosive effect on national unfair competition law. The analysis shows the structural deficiencies of the current EU system and the need for additional fine-tuning based on both EU and national norms.
Adapting EU Trademark Law to New Technologies - Back to Basics?
In recent years, the Court of Justice of the European Union (CJEU) has continuously expanded the scope and reach of trademark protection in the EU. With the challenges arising in the digital environment, however, this expansionist approach becomes more and more questionable. The current problems arising from keyword advertising shed light on areas of overbroad, excessive trademark protection created by the Court. Moreover, inconsistencies in the Court's system of infringement criteria clearly come to the fore. Against this background, the present analysis explores ways out of the dilemma. After a short introduction of basic notions of trademark law (section 1), the problematic expansion of trademark protection in recent years (sections 2 and 3), and current problems arising in the digital environment (section 4), will be analyzed in more detail. Addressing potential solutions, it will be argued that in spite of current difficulties, it would be naive to assume that the Court is prepared to restrict the scope of EU trademark law to traditional protection against confusion with only minor extensions concerning dilution (section 5). Instead, the need for an appropriate, more flexible limitation infrastructure will be emphasized (section 6 and concluding section 7).
Overprotection and Protection Overlaps in Intellectual Property Law - the Need for Horizontal Fair Use Defences
During the last decades, intellectual property protection has been expanded continuously. New technologies were found eligible for patent protection. New types of marks have been recognized in trademark law. Copyright law is no longer confined to the cultural domain. In parallel, the exclusive rights of IP owners have been broadened. The TRIPS Agreement provides for a comprehensive portfolio of patent minimum rights. The WIPO Copyright Treaty added new layers of protection to the standard reached under the Berne Convention. As a result of protection against dilution, trademark rights have become instruments for the exploitation of brand image. Enhanced protection, however, gives rise to the question of appropriate counterbalances. Flexible rights are likely to require flexible limitations for at least two reasons. On the one hand, flexible limitations facilitate the task of maintaining a proper balance between protection and competing freedoms within individual protection regimes. On the other hand, flexible limitations can be employed to safeguard breathing space for unauthorized use when it comes to overlaps between different forms of IP protection. If an intellectual creation enjoys cumulative protection in different IP protection systems, a network of corresponding, flexible limitations ensures that the freedom offered in one system is not eroded through protection granted in another system. The flexibility required within and across IP protection regimes may be provided by open-ended fair use provisions that allow the courts to develop and adjust IP limitations case-by-case on the basis of abstract criteria. Against this background, the paper explores the notion of fair use and identifies factors indicating a need for fair use solutions before embarking on a discussion of the situation in copyright, patent and trademark law. Drawing conclusions, protection overlaps will be considered.