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Abstract:
The protection of trademarks, when it raises a conflict with the protection of geographical indications is one of the most contested issues on the international trade and intellectual property arena. In European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs a WTO panel was faced with this issue. The panel report gives some insight into what international trademark law mandates as well as some pointers on how conflicts between different IP rights should be solved. This article attempts a deeper analysis of the coexistence of rights in the framework of the TRIPS Agreement that will inevitably grow in importance, when trade-related aspects start permeating all intellectual property issues in WTO fora.

The article adopts a new approach to analyzing international trademark law. The Western concept of trademarks as property is contrasted to another concept of property that is derived from the use of property. While the property discussion in itself is not new to trademark law, nor is a discussion on the significance of trademark use in trademark law, here, the discussions are combined and refined in an attempt to provide an analytical framework for deciding international trademark cases.

It is argued that the property right in a trademark should be assessed through how it is used, and any finding of infringement hinges upon whether the use of the trademark by its proprietor is unlawfully affected by a third party's use of an identical or similar sign. Informed by property theory and international law, the analytical framework is applied to the issues raised in the panel report. This leads to the conclusion that the panel report is flawed in certain respects.

trademark, geographical indications, co-existence of rights, treaty interpretation, WTO, TRIPS

Abstract:
Today, third parties that have not traditionally been subject to trademark law increasingly find themselves as defendants in trademark infringement law suits. Whether the culprit or not, strong international trademark protection has unevenly influenced national trademark regulation and the lack of emphasis and clear reference to limits on the acquired right have left courts struggling with how to balance conflicting interests in the use of marks. This note goes back to the source, i.e. international trademark law, in an attempt to locate the limits of trademark law, expressed or implied, and ascertain whether there exists a common understanding of when trademark protection is legitimately afforded and when it is not.

After conducting a theoretical and practical comparison of alternative approaches to balancing competing rights, this note argues that an international common core of trademark protection is inherent in existing international rules. However, the author concludes that this common core mandates a re-evaluation of the traditional approach to trademark interpretation. To this avail the author introduces a systemizing tool designed to aid judges in securing the realization of no more and no less than the international common core of trademark protection in the national application of trademark law.

Re-evaluation is necessary to avoid the harmful results that the traditional categorical approach produces in relation to this new group of defendants, as well as to repair the doctrinal damage incurred from forceful attempts to fit these cases into existing doctrine. The proposed systemizing framework introduces the flexible analytical tools needed to service the global market place in striking an adequate balance between equally important conflicting interests in society.

trademark, freedom of expression, parody, international trademark law, comparative law