Fair Use in Trade Mark Law?

Posted: 22 Jan 2014

See all articles by Ilanah Simon Fhima

Ilanah Simon Fhima

Institute of Brand and Innovation Law, Unversity College London

Date Written: January 6, 2014


I started writing this paper with the intention of conducting a relatively straightforward analysis of whether European trade mark law has a fair use defence. As I began researching though, my thinking took another course. In investigating the copyright defences, I realized that the European trade mark defence cases seemed to have a lot more in common with the restrictiveness of the three step test, rather than the flexibility of more general fair use defences. Thus, in this paper I consider the nature of fair use, and the three step test, and how they differ. I then consider the characteristics of the European trade mark defences that resemble the three step test. I conclude by considering whether Europe would be better off with a more flexible fair use-style approach and the extent to which fair use has quietly crept into the trade mark system.

Keywords: trade mark, trademark, three step test, defences, copyright

JEL Classification: K39, O34

Suggested Citation

Simon, Ilanah, Fair Use in Trade Mark Law? (January 6, 2014). Available at SSRN: https://ssrn.com/abstract=2382026

Ilanah Simon (Contact Author)

Institute of Brand and Innovation Law, Unversity College London ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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