“Mark my words” - Trademarks and Fundamental Rights in the EU

TY - JOUR

T1 - “Mark my words” - Trademarks and Fundamental Rights in the EU

AU - Schovsbo, Jens Hemmingsen

N1 - SSRN WPS 2928031

PY - 2018

Y1 - 2018

N2 - This paper analyses the new provisions in EU law that trademark rules should be “applied in a way that ensures full respect for fundamental rights and freedoms, and in particular the freedom of expression”. It is pointed out how these provisions are part of a broader trend of ‘constitiutionalization’ in EU law whereby courts increasingly rely on fundamental rights when they interpret the rules of IPR. After a presentation of the historical and legislative background for the changes and the related development in copyright law, the likely impact of the new trademark rules is discussed. It is concluded that even though the constitutionalization is not going to revolutionize EU trademark law, it will require courts to consider in a more pronounced way the interests of users’ of trade marks (such as artists or commercial users) vis-à-vis trade mark holders’ interests. This in turn may affect the way court interpret trade mark law and in particular give more room to the limitations and exceptions. The effects of such a development may be to limit the ability of trademark holders to push exclusivity in ways that harm cultural development, public debate and fair competition.

AB - This paper analyses the new provisions in EU law that trademark rules should be “applied in a way that ensures full respect for fundamental rights and freedoms, and in particular the freedom of expression”. It is pointed out how these provisions are part of a broader trend of ‘constitiutionalization’ in EU law whereby courts increasingly rely on fundamental rights when they interpret the rules of IPR. After a presentation of the historical and legislative background for the changes and the related development in copyright law, the likely impact of the new trademark rules is discussed. It is concluded that even though the constitutionalization is not going to revolutionize EU trademark law, it will require courts to consider in a more pronounced way the interests of users’ of trade marks (such as artists or commercial users) vis-à-vis trade mark holders’ interests. This in turn may affect the way court interpret trade mark law and in particular give more room to the limitations and exceptions. The effects of such a development may be to limit the ability of trademark holders to push exclusivity in ways that harm cultural development, public debate and fair competition.

M3 - Journal article

SN - 2327-4514

VL - 8

SP - 555

EP - 581

JO - UC Irvine Law Review

JF - UC Irvine Law Review

IS - 3

ER -