According to EU and international trade mark law, signs that are contrary to public policy or to accepted principles of morality may be denied registration. Public policy and morality are open legal concepts that provide a typical entrance door for fundamental rights, allowing the taking into account of ethical values when defining the content and scope of intellectual property law. As IP offices are EU or national institutions that are bound by fundamental rights protection, the conformity of their practice needs to be tested with regard to these higher constitutional principles. In this article, we will verify if the current practices with regard to the refusal to register immoral trade marks on morality and public policy grounds take sufficiently into account fundamental rights, and in particular the freedom of expression and freedom to conduct business of trade marks applicants. If the decisions of the European Union Intellectual Property Office (EUIPO) will be given the main attention, those of the General Court of the European Union (GCEU), the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and the EFTA Court will also be considered. The European practice will then be compared to the recent case law on this topic in the United States, in particular to the Supreme Court decision Matal v. Tam of June 2017, already considered by some commentators as a historical development as it overturns a long tradition of trade mark precedent barring from protection offensive and disparaging trade marks. We conclude that the implications of fundamental rights protection in the EU might lead to different results than in the US and that the practice developed by the EUIPO with regard to immoral trade marks is in general consistent with the standards required by the European legal order. However, there might be some (rare) situations where a new approach could be needed in the future, for example when the trade mark application can qualify as mixed expression, both commercial and political or artistic in nature.
{"title":"Trade Mark Registration, Public Policy, Morality and Fundamental Rights","authors":"C. Geiger, Leonardo Machado Pontes","doi":"10.2139/SSRN.3009170","DOIUrl":"https://doi.org/10.2139/SSRN.3009170","url":null,"abstract":"According to EU and international trade mark law, signs that are contrary to public policy or to accepted principles of morality may be denied registration. Public policy and morality are open legal concepts that provide a typical entrance door for fundamental rights, allowing the taking into account of ethical values when defining the content and scope of intellectual property law. As IP offices are EU or national institutions that are bound by fundamental rights protection, the conformity of their practice needs to be tested with regard to these higher constitutional principles. In this article, we will verify if the current practices with regard to the refusal to register immoral trade marks on morality and public policy grounds take sufficiently into account fundamental rights, and in particular the freedom of expression and freedom to conduct business of trade marks applicants. If the decisions of the European Union Intellectual Property Office (EUIPO) will be given the main attention, those of the General Court of the European Union (GCEU), the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and the EFTA Court will also be considered. The European practice will then be compared to the recent case law on this topic in the United States, in particular to the Supreme Court decision Matal v. Tam of June 2017, already considered by some commentators as a historical development as it overturns a long tradition of trade mark precedent barring from protection offensive and disparaging trade marks. We conclude that the implications of fundamental rights protection in the EU might lead to different results than in the US and that the practice developed by the EUIPO with regard to immoral trade marks is in general consistent with the standards required by the European legal order. However, there might be some (rare) situations where a new approach could be needed in the future, for example when the trade mark application can qualify as mixed expression, both commercial and political or artistic in nature.","PeriodicalId":432577,"journal":{"name":"Center for International Intellectual Property Studies (CEIPI) Research Paper Series","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114722807","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}
To lay out the ground upon which intellectual property issues rest in international trade law, it may be interesting to wonder about the reason why such issues have been integrated in international trade law and in particular to wonder about the justification of regulating upon IPRs in international trade agreements, what is revealing how such rights are understood. And the way they are comprehended is telling us about what is their justification. Then, it is of particular importance to compare their grounds in international trade law to the historical justifications of IPRs in national law.
{"title":"Intellectual Property Rights in International Trade Law: Challenging Their Original Justification?","authors":"Stéphanie Carre","doi":"10.2139/SSRN.3054003","DOIUrl":"https://doi.org/10.2139/SSRN.3054003","url":null,"abstract":"To lay out the ground upon which intellectual property issues rest in international trade law, it may be interesting to wonder about the reason why such issues have been integrated in international trade law and in particular to wonder about the justification of regulating upon IPRs in international trade agreements, what is revealing how such rights are understood. And the way they are comprehended is telling us about what is their justification. Then, it is of particular importance to compare their grounds in international trade law to the historical justifications of IPRs in national law.","PeriodicalId":432577,"journal":{"name":"Center for International Intellectual Property Studies (CEIPI) Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124351859","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}
Pub Date : 1900-01-01DOI: 10.1007/978-3-662-48107-3_21
C. Geiger
{"title":"Towards a Balanced International Legal Framework for Criminal Enforcement of Intellectual Property Rights","authors":"C. Geiger","doi":"10.1007/978-3-662-48107-3_21","DOIUrl":"https://doi.org/10.1007/978-3-662-48107-3_21","url":null,"abstract":"","PeriodicalId":432577,"journal":{"name":"Center for International Intellectual Property Studies (CEIPI) Research Paper Series","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125707592","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}
As a part of a consultation with stakeholders in order to evaluate the overall functioning of the civil enforcement mechanism for intellectual property rights, the European Commission has opened a survey on “the efficiency of proceedings and accessibility of measures” to gather specific information about the enforcement of intellectual property rights through contracts, litigation, or other means. The Centre for International Intellectual Property Studies (CEIPI) submits a certain number of observations to the European legislature from the perspective of ADR (alternative dispute resolution). Although ADR has been recognized as an important means of dispute resolution and much effort - primarily on the national level - has been made, its use in the field of intellectual property rights remains modest. The CEIPI provides an analysis on the current state of affairs and advances proposals on how best the European Commission could make use of ADR in order to achieve effective enforcement of intellectual property rights.
{"title":"Civil Enforcement of Intellectual Property Rights: Public Consultation on the Efficiency of Proceedings and Accessibility of Measures. CEIPI's Comments on the Public Consultation, with a Focus on Alternative Dispute Resolution Mechanisms","authors":"C. Geiger, Xavier Seuba, A. Hatanaka","doi":"10.2139/SSRN.2971107","DOIUrl":"https://doi.org/10.2139/SSRN.2971107","url":null,"abstract":"As a part of a consultation with stakeholders in order to evaluate the overall functioning of the civil enforcement mechanism for intellectual property rights, the European Commission has opened a survey on “the efficiency of proceedings and accessibility of measures” to gather specific information about the enforcement of intellectual property rights through contracts, litigation, or other means. The Centre for International Intellectual Property Studies (CEIPI) submits a certain number of observations to the European legislature from the perspective of ADR (alternative dispute resolution). \u0000Although ADR has been recognized as an important means of dispute resolution and much effort - primarily on the national level - has been made, its use in the field of intellectual property rights remains modest. The CEIPI provides an analysis on the current state of affairs and advances proposals on how best the European Commission could make use of ADR in order to achieve effective enforcement of intellectual property rights.","PeriodicalId":432577,"journal":{"name":"Center for International Intellectual Property Studies (CEIPI) Research Paper Series","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133909655","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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