Trademarked fashion items pose a particular obstacle to reuse projects in the circular economy. By granting broad exclusive rights, EU trademark law exposes sustainable reuse practices, such as upcycling, to allegations of infringement ranging from (post-sale) confusion to blurring, tarnishment and unfair freeriding. Against that background, this analysis explores strategies to assure fashion re-users that, as long as they do not specifically aim to mislead consumers or damage and exploit protected brand insignia, they can rework trademarked fashion items without risking the verdict of infringement. Two options for enhancing legal certainty will be explored: the first consists in adopting a strict test for ‘use as a trademark’ that could immunise sustainable fashion reuse against allegations of trademark infringement on the ground that consumers understand the specific reuse context and perceive third-party trademarks on circular economy products as mere decorative elements. The second option involves strengthening defences, in particular the referential use defence, by developing labelling guidelines that allow fashion re-users to ensure compliance with the requirement of honest practices in industrial or commercial matters.
{"title":"Developing Defences for Fashion Upcycling in EU Trademark Law","authors":"Martin Senftleben","doi":"10.1093/grurint/ikad131","DOIUrl":"https://doi.org/10.1093/grurint/ikad131","url":null,"abstract":"\u0000 Trademarked fashion items pose a particular obstacle to reuse projects in the circular economy. By granting broad exclusive rights, EU trademark law exposes sustainable reuse practices, such as upcycling, to allegations of infringement ranging from (post-sale) confusion to blurring, tarnishment and unfair freeriding. Against that background, this analysis explores strategies to assure fashion re-users that, as long as they do not specifically aim to mislead consumers or damage and exploit protected brand insignia, they can rework trademarked fashion items without risking the verdict of infringement. Two options for enhancing legal certainty will be explored: the first consists in adopting a strict test for ‘use as a trademark’ that could immunise sustainable fashion reuse against allegations of trademark infringement on the ground that consumers understand the specific reuse context and perceive third-party trademarks on circular economy products as mere decorative elements. The second option involves strengthening defences, in particular the referential use defence, by developing labelling guidelines that allow fashion re-users to ensure compliance with the requirement of honest practices in industrial or commercial matters.","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"72 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138948105","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}
The article focuses on the use of European geographical names in certain countries of the so-called ‘New World’ (i.e. nations reached in the past by waves of European migration) and the impact of such migration on the debate around the protection of geographical indications (GIs). Specifically, the article analyses four GIs case studies – ‘Prosecco’, ‘Budweiser’, ‘Rioja’ and 'Parmesan' – which highlight the role of migration in this context and how countries of the New World (e.g. US, Canada, Australia, etc.) emphasise this role to argue that several European geographical names of food and wine products are just the generic terms for the products themselves. The ‘migration’ factor however is downplayed by the EU (i.e. the Old World), which stresses that European GIs still have a distinctive function linked to the geographical origin of the underlying product and should be protected in Europe and beyond.
{"title":"Geographical Indications Between the Old World and the New World, and the Impact of Migration","authors":"Enrico Bonadio, Magali Contardi, N. Lucchi","doi":"10.1093/grurint/ikad122","DOIUrl":"https://doi.org/10.1093/grurint/ikad122","url":null,"abstract":"\u0000 The article focuses on the use of European geographical names in certain countries of the so-called ‘New World’ (i.e. nations reached in the past by waves of European migration) and the impact of such migration on the debate around the protection of geographical indications (GIs). Specifically, the article analyses four GIs case studies – ‘Prosecco’, ‘Budweiser’, ‘Rioja’ and 'Parmesan' – which highlight the role of migration in this context and how countries of the New World (e.g. US, Canada, Australia, etc.) emphasise this role to argue that several European geographical names of food and wine products are just the generic terms for the products themselves. The ‘migration’ factor however is downplayed by the EU (i.e. the Old World), which stresses that European GIs still have a distinctive function linked to the geographical origin of the underlying product and should be protected in Europe and beyond.","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"75 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138951448","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":"Copyright as Affirmative Action for Human Authors Until the Singularity","authors":"Danny Friedmann","doi":"10.1093/grurint/ikad133","DOIUrl":"https://doi.org/10.1093/grurint/ikad133","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"56 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139008372","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":"Lessons From a Narrow TRIPS Waiver","authors":"Carlos M Correa","doi":"10.1093/grurint/ikad130","DOIUrl":"https://doi.org/10.1093/grurint/ikad130","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"22 24","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139009294","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":"Factors That Deny the Existence of Inventive Step","authors":"","doi":"10.1093/grurint/ikad127","DOIUrl":"https://doi.org/10.1093/grurint/ikad127","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"140 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138978558","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":"Tobacco Company is Prohibited from Sponsoring Festival and Promoting its Products in Connection with it","authors":"","doi":"10.1093/grurint/ikad117","DOIUrl":"https://doi.org/10.1093/grurint/ikad117","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"190 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139010088","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":"No Cumulative Protection Against Likelihood of Confusion Under Trade Mark and Unfair Competition Law","authors":"","doi":"10.1093/grurint/ikad125","DOIUrl":"https://doi.org/10.1093/grurint/ikad125","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"15 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138585247","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":"Parody Principle and Concept of Independent Work in Copyright Law","authors":"","doi":"10.1093/grurint/ikad118","DOIUrl":"https://doi.org/10.1093/grurint/ikad118","url":null,"abstract":"","PeriodicalId":432164,"journal":{"name":"GRUR International","volume":"698 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138982792","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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