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Vigeland and the Status of Cultural Concerns in Trade Mark Law – The EFTA Court Develops More Effective Tools for the reservation of the Public Domain
SENFTLEBEN, Martin - Personal Name
The Vigeland decision of the EFTA Court is a milestone in the preservation of the public domain of cultural creations. It paves the way for an important and welcome recalibration of the copyright/trade mark interface. The Court departs from the traditional approach which relies on non-distinctiveness, descriptiveness or genericness to reject trade mark rights. Instead, he Court provides exemplary lines of argument for the application of considerations of public policy and principles of morality as grounds for refusal. As a refusal based on these grounds cannot be overcome through use in trade, this rejection of a egistration request leads to an outright exclusion from trade mark protection and a robust preservation of a work’s
public domain status. National offices and courts should follow in the footsteps of the EFTA Court to avoid that trade mark law provides dysfunctional incentives for the re-privatization of cultural public domain material. In this way, they can also
avoid that public money is wasted on the acquisition and maintenance of a costly trade mark portfolio relating to artworks.
public domain status. National offices and courts should follow in the footsteps of the EFTA Court to avoid that trade mark law provides dysfunctional incentives for the re-privatization of cultural public domain material. In this way, they can also
avoid that public money is wasted on the acquisition and maintenance of a costly trade mark portfolio relating to artworks.
Availability
| EB00000004385K | Available |
Detail Information
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NONE
Detail Information
Content Type
E-Jurnal
Media Type
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Subject(s)
Public policy
Public domain preservation
Copyright/trade mark interface
Grounds for refusal
Accepted principles of morality
Functionality doctrine
Specific Detail Info
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Statement of Responsibility
Martin Senftleben
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