This opinion explores what constitutes a trademark parody in an artistic context and when it crosses the line of trademark infringement in dilution cases which occur beyond the traditional trademark protection from the likelihood of confusion. This is shown by analysing the latest two decisions regarding trademark parody handed down by the German Frankfurt am Main Regional Court in a case in which Hermès has suffered a setback in its attempt to prevent a fashion label from using its iconic Birkin handbag at the Berlin fashion show in 2023. While parody is considered a protected form of speech or artistic expression, no clear-cut legal rule separates a legitimate parody from an infringing use, in particular in cases of so-called mixed expressions where the reference to the protected trademark is not closely tied to commercial use but still happens outside of a purely artistic context. Compared to the statutory copyright’s flexible fair use defence, there is simply too little case law available to draw on in trademark dilution law. The few rigid defences German courts have cobbled together in trademark cases illustrate that trademark could benefit from a clearer identification of use categories. The following analysis of these decisions aims at highlighting that urgent trademark reforms are necessary in the area of art-related fair use defences. Furthermore, the following analysis will illustrate how big corporations like Hermès can fail when attempting to use trademark rights to control the meaning not only of wealth and exclusivity but also of conspicuous consumption and the equally conspicuous display of wealth, status and power in male-dominated domains.
{"title":"The Artistic Use Defence in Trademark Dilution Cases – Hermès’ Legal Setback in Its Attempt to Prevent Others from Using Its Iconic Birkin Handbag","authors":"Ines Duhanic","doi":"10.1093/grurint/ikae012","DOIUrl":"https://doi.org/10.1093/grurint/ikae012","url":null,"abstract":"\u0000 This opinion explores what constitutes a trademark parody in an artistic context and when it crosses the line of trademark infringement in dilution cases which occur beyond the traditional trademark protection from the likelihood of confusion. This is shown by analysing the latest two decisions regarding trademark parody handed down by the German Frankfurt am Main Regional Court in a case in which Hermès has suffered a setback in its attempt to prevent a fashion label from using its iconic Birkin handbag at the Berlin fashion show in 2023.\u0000 While parody is considered a protected form of speech or artistic expression, no clear-cut legal rule separates a legitimate parody from an infringing use, in particular in cases of so-called mixed expressions where the reference to the protected trademark is not closely tied to commercial use but still happens outside of a purely artistic context. Compared to the statutory copyright’s flexible fair use defence, there is simply too little case law available to draw on in trademark dilution law. The few rigid defences German courts have cobbled together in trademark cases illustrate that trademark could benefit from a clearer identification of use categories. The following analysis of these decisions aims at highlighting that urgent trademark reforms are necessary in the area of art-related fair use defences. Furthermore, the following analysis will illustrate how big corporations like Hermès can fail when attempting to use trademark rights to control the meaning not only of wealth and exclusivity but also of conspicuous consumption and the equally conspicuous display of wealth, status and power in male-dominated domains.","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"113 51","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139786297","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Limitation Period for Civil Actions for Copyright Infringement","authors":"","doi":"10.1093/grurint/ikae015","DOIUrl":"https://doi.org/10.1093/grurint/ikae015","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":" 1291","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139786864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This opinion explores what constitutes a trademark parody in an artistic context and when it crosses the line of trademark infringement in dilution cases which occur beyond the traditional trademark protection from the likelihood of confusion. This is shown by analysing the latest two decisions regarding trademark parody handed down by the German Frankfurt am Main Regional Court in a case in which Hermès has suffered a setback in its attempt to prevent a fashion label from using its iconic Birkin handbag at the Berlin fashion show in 2023. While parody is considered a protected form of speech or artistic expression, no clear-cut legal rule separates a legitimate parody from an infringing use, in particular in cases of so-called mixed expressions where the reference to the protected trademark is not closely tied to commercial use but still happens outside of a purely artistic context. Compared to the statutory copyright’s flexible fair use defence, there is simply too little case law available to draw on in trademark dilution law. The few rigid defences German courts have cobbled together in trademark cases illustrate that trademark could benefit from a clearer identification of use categories. The following analysis of these decisions aims at highlighting that urgent trademark reforms are necessary in the area of art-related fair use defences. Furthermore, the following analysis will illustrate how big corporations like Hermès can fail when attempting to use trademark rights to control the meaning not only of wealth and exclusivity but also of conspicuous consumption and the equally conspicuous display of wealth, status and power in male-dominated domains.
{"title":"The Artistic Use Defence in Trademark Dilution Cases – Hermès’ Legal Setback in Its Attempt to Prevent Others from Using Its Iconic Birkin Handbag","authors":"Ines Duhanic","doi":"10.1093/grurint/ikae012","DOIUrl":"https://doi.org/10.1093/grurint/ikae012","url":null,"abstract":"\u0000 This opinion explores what constitutes a trademark parody in an artistic context and when it crosses the line of trademark infringement in dilution cases which occur beyond the traditional trademark protection from the likelihood of confusion. This is shown by analysing the latest two decisions regarding trademark parody handed down by the German Frankfurt am Main Regional Court in a case in which Hermès has suffered a setback in its attempt to prevent a fashion label from using its iconic Birkin handbag at the Berlin fashion show in 2023.\u0000 While parody is considered a protected form of speech or artistic expression, no clear-cut legal rule separates a legitimate parody from an infringing use, in particular in cases of so-called mixed expressions where the reference to the protected trademark is not closely tied to commercial use but still happens outside of a purely artistic context. Compared to the statutory copyright’s flexible fair use defence, there is simply too little case law available to draw on in trademark dilution law. The few rigid defences German courts have cobbled together in trademark cases illustrate that trademark could benefit from a clearer identification of use categories. The following analysis of these decisions aims at highlighting that urgent trademark reforms are necessary in the area of art-related fair use defences. Furthermore, the following analysis will illustrate how big corporations like Hermès can fail when attempting to use trademark rights to control the meaning not only of wealth and exclusivity but also of conspicuous consumption and the equally conspicuous display of wealth, status and power in male-dominated domains.","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"12 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139846401","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Turkey’s New E-Commerce Law: A Draconian Regulation of Digital Platforms","authors":"Kerem Cem Sanlı","doi":"10.1093/grurint/ikae016","DOIUrl":"https://doi.org/10.1093/grurint/ikae016","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"14 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139846225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
At no time in recent history has it been more exciting to be a student of European patent law. Over the past ten years Europe has sought to create and restructure a significant portion of its patent law apparatus, including the introduction of a ‘Unitary Patent’ (‘UP’) that has effect in 17 European Union Member States (and counting), and the creation of a Unitary Patent Court (‘UPC’) that entered into force on 1 June 2023. The compelling policies underlying these dramatic changes are well documented, including enhanced uniformity, cost reductions, and other efficiencies. Indeed, the European patent system is poised to welcome international patent actors with a well-thought-out procedural regime. Yet all good policies must be supported by a legitimate legal foundation. The United Kingdom’s highly publicized and often dramatic departure from the EU has reverberated throughout the European establishment, affecting issues relating to the economy, trade, immigration, labor, and Northern Ireland, to name just some of the most obvious. Perhaps what is not so evident, however, is the adverse legal effect that Brexit has had on the UPC, to such an extent that we are dubious about the court’s legitimacy. Make no mistake, even if we prefer a fully integrated EU solution, we support the creation of UPC and the entire unitary initiative. However, in this paper we argue that it must be done in a manner that is legally principled, which requires an amended and re-ratified Unitary Patent Court Agreement.
{"title":"Brexit and the Legal Legitimacy of the Unitary Patent Court","authors":"Nicolas Binctin, C. Nard","doi":"10.1093/grurint/ikae004","DOIUrl":"https://doi.org/10.1093/grurint/ikae004","url":null,"abstract":"\u0000 At no time in recent history has it been more exciting to be a student of European patent law. Over the past ten years Europe has sought to create and restructure a significant portion of its patent law apparatus, including the introduction of a ‘Unitary Patent’ (‘UP’) that has effect in 17 European Union Member States (and counting), and the creation of a Unitary Patent Court (‘UPC’) that entered into force on 1 June 2023. The compelling policies underlying these dramatic changes are well documented, including enhanced uniformity, cost reductions, and other efficiencies. Indeed, the European patent system is poised to welcome international patent actors with a well-thought-out procedural regime.\u0000 Yet all good policies must be supported by a legitimate legal foundation. The United Kingdom’s highly publicized and often dramatic departure from the EU has reverberated throughout the European establishment, affecting issues relating to the economy, trade, immigration, labor, and Northern Ireland, to name just some of the most obvious. Perhaps what is not so evident, however, is the adverse legal effect that Brexit has had on the UPC, to such an extent that we are dubious about the court’s legitimacy. Make no mistake, even if we prefer a fully integrated EU solution, we support the creation of UPC and the entire unitary initiative. However, in this paper we argue that it must be done in a manner that is legally principled, which requires an amended and re-ratified Unitary Patent Court Agreement.","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":" 23","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139788524","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Compensation for Individual Harm Caused by a Cartel","authors":"","doi":"10.1093/grurint/ikae011","DOIUrl":"https://doi.org/10.1093/grurint/ikae011","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"34 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139850062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Assessing Whether a Usenet Service Provider Is Entitled to Rely on Exemption from Liability","authors":"","doi":"10.1093/grurint/ikae009","DOIUrl":"https://doi.org/10.1093/grurint/ikae009","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"59 2-3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139849393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Assessing Whether a Usenet Service Provider Is Entitled to Rely on Exemption from Liability","authors":"","doi":"10.1093/grurint/ikae009","DOIUrl":"https://doi.org/10.1093/grurint/ikae009","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":" 45","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139789503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Compensation for Individual Harm Caused by a Cartel","authors":"","doi":"10.1093/grurint/ikae011","DOIUrl":"https://doi.org/10.1093/grurint/ikae011","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":" 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139790106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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