The Role of Legitimacy in Trade Mark Law
(2010) 65 Current Legal Problems 489
56 Pages Posted: 18 Dec 2012
Date Written: September 12, 2012
Far from being a ‘monopoly right’, the rights granted under a trade mark equate to the exclusive right to undertake a number of activities, and to prevent others from doing the same. However, even within the scope of those exclusive rights, the Court of Justice of the European Union has attempted to demarcate between permitted and non-permitted uses of those legislatively granted exclusive rights using the tool of ‘legitimacy’.
This article attempts to map out the instances in which the concept of legitimacy has been used in trade mark law, and to determine when the Court of Justice of the European Union does and does not consider a trade mark owner’s reliance on its rights to be ‘legitimate’. It considers whether legitimacy provides a way of understanding and predicting how the rights of trade mark owners, their competitors, consumers, and the wider public are balanced, and whether it identifies a single key interest that trade mark law serves.
Keywords: trademark, trade mark, Europe, intellectual property, ECJ, CJEU
JEL Classification: K30, O34
Suggested Citation: Suggested Citation