Public Domain at the Interface of Trade Mark and Unfair Competition Law - The Case of Referential Use of Trade Marks
Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly (eds), Property and Conduct: Convergences and Developments in IP, Unfair Competition and Publicity, Edward Elgar, Forthcoming 2012
19 Pages Posted: 15 May 2012
Date Written: March 14, 2012
The robustness of the public domain is an essential condition for creation and innovation. In particular, the public domain functions as a device within intellectual property law to allow certain uses of valuable signs, symbols, images and information, in both commercial and non-commercial speech. The public domain, articulated as limiting principles and doctrines in law also functions as limitations where the protection does not reach and the rights may not be asserted. In this sense, the concept of public domain is used as one way to balance the fundamental right of freedom of expression and protection of intellectual property. Focusing on the concept of the public domain in trade mark law, with the example of how referential uses of signs in both commercial and cultural context are regulated, this chapter explores changes in law that affect this balances. In particular, this chapter examines how the availability of signs to communicate to the public cultural meanings and the cultural experiences of the public is affected by the various impulses in trademark law to protect the investments.
Keywords: trademark, referential use, cultural references, public domain, intellectual property
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