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The Copyright / Trademark Interface: How the Expansion of Trademark Protection Is Stifling Cultural Creativity


ISBN13: 9789403523705
Published: December 2020
Publisher: Kluwer Law International
Country of Publication: Netherlands
Format: Hardback
Price: £130.00



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The Copyright/Trademark Interface is an exceptional analysis of the clash between culture and commerce, and the imbalances caused by protection overlaps arising from cumulative copyright and trademark protection. This book highlights the corrosive effect of indefinitely renewable trademark rights. It underscores the necessity to safeguard central preconditions for the proper functioning of the copyright system in society at large: the freedom to use pre-existing works as reference points for the artistic discourse and building blocks for new creations need to ensure the constant enrichment of the public domain. The registration of cultural icons as trademarks has become a standard protection strategy in contemporary cultural productions. It plays an augmented role in the area of cultural heritage. Attempts to register and ‘evergreen’ the protection of cultural signs, ranging from ‘Mickey Mouse’ to the ‘Mona Lisa’, are no longer unusual. This phenomenon, which is characterized by the EFTA Court as trademark registrations and is triggered by ‘commercial greed’, has become typical of an era where trademark law is employed strategically to restrain or eliminate cultural symbols from the public domain.

What’s in this book:

By drawing attention to how overlapping copyright and trademark protection imperils the proper functioning of intellectual property rights in the literary and artistic domain, the author delves into whether the intellectual property system can mitigate the risks arising from cumulative protection. The issues and topics explored in depth are:

  • the different configuration of intellectual property rights following different policy objectives and societal functions, in particular, the cultural imperative in copyright law and the market transparency imperative in trademark law
  • problems arising from the registration of cultural icons for use on souvenir and merchandising articles
  • lack of sufficient safeguards in trademark law against cultural heritage branding
  • current scope of trademark rights, including the protection of brand value and communication functions, and the deterrent effect of trademark protection on cultural creativity
  • possibility of a categorical exclusion of contemporary cultural icons and cultural heritage material from trademark protection
  • development of a strict gatekeeper requirement of ‘use as a mark’ to prevent unjustified trademark infringement claims
  • development of robust, culturally based defences against trademark infringement claims, and
  • general guidelines for the regulation of protection overlaps in intellectual property law, based on insights derived from the analysis of copyright/trademark overlaps

How this will help you:

Drawing on aesthetic, sociological and economic theories that support initiatives to safeguard the autonomy of the literary and artistic domain and support the remix activities of artists, the author suggests sound criteria for identifying signs with cultural significance that should be excluded from trademark registration. The book shows how intellectual property law can make rights cumulation strategies less attractive and avoid the loss of inner consistency and social legitimacy, easing the tension between indefinitely renewable trademark rights and the need to preserve and cultivate the public domain of cultural expressions and other intellectual creations that enjoy protection for a limited period of time, such as industrial designs and technical know-how. Its assessment criteria will assist and enable trademark examiners and judges to identify relevant cultural signs. Its proposals for regulatory responses to protection overlaps in intellectual property law will prove to be of great and lasting value to lawyers, policymakers, and scholars dealing with intellectual property law.

Subjects:
Intellectual Property Law
Contents:
Preface
List of Abbreviations
Chapter 1. Introduction
Chapter 2. Overlap Dilemma
Chapter 3. Cultural Imperative in Copyright Law
Chapter 4. Market Transparency Imperative in Trademark Law
Chapter 5. Cultural Signs to Be Kept Free
Chapter 6. Risk Assessment
Chapter 7. Perpetuation of the Protection of Cultural Expressions
Chapter 8. Reappropriation of Cultural Expressions in the Public Domain
Chapter 9. Risk Reduction
Chapter 10. Overlap Dilemma Revisited
Bibliography
Table of Cases
Index

Series: Information Law Series

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Pluralism or Universalism in International Copyright Law ISBN 9789403503554
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£132.00
Open Source Software and Intellectual Property Rights ISBN 9789041152282
Published June 2014
Kluwer Law International
£237.00
Variable Scope of the Exclusive Economic Rights in Copyright ISBN 9789041149152
Published May 2014
Kluwer Law International
£222.00
Codification of European Copyright Law: Challenges and Perspectives ISBN 9789041141453
Published December 2012
Kluwer Law International
£203.00
£152.00
Copyright Enforcement and the Internet ISBN 9789041133465
Published November 2010
Kluwer Law International
£173.00
Public Broadcasting and European Law ISBN 9789041125002
Published May 2008
Kluwer Law International
£167.00
£163.00
Copyright, Limitations and the Three-step Test ISBN 9789041122674
Published January 2004
Kluwer Law International
£163.00
£145.00
Data Protection Law: Approaching Its Rationale, Logic and Limits ISBN 9789041198709
Published August 2002
Kluwer Law International
£215.00
The Commodification of Information
ISBN 9789041198761
Published July 2002
Kluwer Law International
£243.00
Copyright Limitations and Contracts ISBN 9789041198679
Published February 2002
Kluwer Law International
£197.00
Copyright and Electronic Commerce
Edited by: Hugenholtz
ISBN 9789041197856
Published April 2000
Kluwer Law International
£195.00
Copyright and Photographs: An International Survey ISBN 9789041197221
Published June 1999
Kluwer Law International
£243.00
Intellectual Property and Information Law: Essays in Honour of Herman Cohen Jehoram ISBN 9789041197023
Published January 1999
Kluwer Law International
£226.00
From Privacy Toward a New Intellectual Property Right in Persona ISBN 9789041103550
Published February 1997
Kluwer Law International
£243.00
The Future of Copyright in a Digital Environment
ISBN 9789041102676
Published July 1996
Kluwer Law International
£188.00
Challenges to the Creator Doctrine
ISBN 9789065448767
Published August 1994
Kluwer Law International
£144.00