Trade Marks and Human Rights
INTELLECTUAL PROPERTY AND HUMAN RIGHTS, pp. 335-357, P. Torremans, ed., Wolters Kluwer, 2008
22 Pages Posted: 8 Sep 2011
Date Written: May 7, 2008
Abstract
Human rights and trade mark law sit uneasily together. This is in part the result of an educational tradition and the division of legal research into the spheres of private and commercial law on the one hand, and public law, international law and human rights law on the other. This division is also reinforced by the historically grown court systems in many countries. However, human rights concerns become increasingly relevant in trade mark law, an area of intellectual property law which is seemingly of little importance in comparison to copyright. This development is the result of an expansion – arguably an unwarranted expansion – of the powers of the property right which the trade mark confers. The courts in Europe and the United States have been willing to consider especially freedom of expression in trade mark infringement actions where a trade mark has been parodied or used for the purpose of criticism, but the courts have still been reticent about human rights in general in a commercial setting. However, the recognition of human rights protection of trade marks as property rights never seemed to have been a controversial issue, and this stance has recently been confirmed at the highest level by the European Court of Human Rights for European Convention countries.
Keywords: Trade Marks, Human Rights, European Convention on Human Rights, Trade Mark Parody Europe, United States
JEL Classification: K11, K19, O34
Suggested Citation: Suggested Citation