The Public Interest in European Trade Mark Law

[2017] Intellectual Property Quarterly

38 Pages Posted: 29 Sep 2017

See all articles by Ilanah Simon Fhima

Ilanah Simon Fhima

Institute of Brand and Innovation Law, Unversity College London

Date Written: September 27, 2017

Abstract

This article considers the CJEU’s treatment of the public interest in European trade mark law. It is argued that the CJEU utilises the public interest as a flexible tool. Sometimes the public interest is used to restrict the scope of trade mark law. This is predominantly in the field of registrability, where registering a mark may impact on the ability of third parties to use that mark or words, pictures, product shapes or other indicia that come too close to the applied for mark. On the other hand, the public interest is frequently used to expand the scope of European trade mark law. It is argued that this is predominantly in relation to inter partes situations, such as infringement of a registered mark, where there is a pre-existing right to protect. While this dichotomous view of the public interest may appear inconsistent, the idea of an evolving definition of the public interest is consistent with contemporary thinking of the subject, and, it is argued, is desirable in policy terms, giving the CJEU a mechanism to protect the interests of all impacted by the trade mark system, even when their needs have not be explicitly spelled out in the European legislation.

Keywords: Trademark, Public Interest, Defences, Registrability, CJEU, Intellectual Property, Infringement

JEL Classification: K3, K30

Suggested Citation

Simon, Ilanah, The Public Interest in European Trade Mark Law (September 27, 2017). [2017] Intellectual Property Quarterly . Available at SSRN: https://ssrn.com/abstract=3044057

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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