Fair Use in Trade Mark Law?
Posted: 22 Jan 2014
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: Suggested Citation