Vigeland and the Status of Cultural Concerns in Trade Mark Law – The EFTA Court Develops More Effective Tools for the Preservation of the Public Domain
International Review of Intellectual Property and Competition Law 48 (2017), pp. 683-720
38 Pages Posted: 25 Oct 2017
Date Written: September 4, 2017
The Vigeland decision of the EFTA Court is a milestone in the preservation of the public domain of cultural creations. It paves the way for an important and welcome recalibration of the copyright/trade mark interface. The Court departs from the traditional approach which relies on non-distinctiveness, descriptiveness or genericness to reject trade mark rights. Instead, the Court provides exemplary lines of argument for the application of considerations of public policy and principles of morality as grounds for refusal. As a refusal based on these grounds cannot be overcome through use in trade, this rejection of a registration request leads to an outright exclusion from trade mark protection and a robust preservation of a work’s public domain status. National offices and courts should follow in the footsteps of the EFTA Court to avoid that trade mark law provides dysfunctional incentives for the re-privatization of cultural public domain material. In this way, they can also avoid that public money is wasted on the acquisition and maintenance of a costly trade mark portfolio relating to artworks.
Keywords: public domain preservation, cumulative copyright and trademark protection, public order and morality, grounds for refusal, dysfunctional incentives, shape marks, derivative works, freedom of expression, deterrent effect of intellectual property, functionality, distinctiveness, need to keep free
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