TY - UNPB

T1 - Public Policy limitations of trade mark subject matter – An EU perspective

AU - Schovsbo, Jens Hemmingsen

AU - Riis, Thomas

N1 - Available at SSRN: https://ssrn.com/abstract=3188013

PY - 2018

Y1 - 2018

N2 - This contribution discusses public policy limitations of trade mark subject matter in EU law. It first identifies three policy objectives which underlie the public policy limitations in the EU trade mark rules and connect these to specific grounds for refusal: Safeguarding the public domain (the requirement of distinctiveness and non-descriptiveness of sign), limiting the use of offensive signs (the rule that prevents the protection of signs which are contrary to public policy or morality) and preventing consumer deception (the rule which bans mark which deceive the public). It is pointed out that even though the public policy limitations have been closely linked to specific grounds for refusal, the development in practice has been less clear. Most notably the Vigeland-decision from the EFTA court has highlighted the pre-eminent nature of the interest in safeguarding the public domain and has expanded the scope of the limitation for signs which are contrary to public policy or morality to serve as a corrective mechanism for the test of distinctiveness. Finally, it is pointed out that principles of fundamental rights norms ² such as the right to Free Speech ² may affect practices too and further promote public policy interests in trade mark law.

AB - This contribution discusses public policy limitations of trade mark subject matter in EU law. It first identifies three policy objectives which underlie the public policy limitations in the EU trade mark rules and connect these to specific grounds for refusal: Safeguarding the public domain (the requirement of distinctiveness and non-descriptiveness of sign), limiting the use of offensive signs (the rule that prevents the protection of signs which are contrary to public policy or morality) and preventing consumer deception (the rule which bans mark which deceive the public). It is pointed out that even though the public policy limitations have been closely linked to specific grounds for refusal, the development in practice has been less clear. Most notably the Vigeland-decision from the EFTA court has highlighted the pre-eminent nature of the interest in safeguarding the public domain and has expanded the scope of the limitation for signs which are contrary to public policy or morality to serve as a corrective mechanism for the test of distinctiveness. Finally, it is pointed out that principles of fundamental rights norms ² such as the right to Free Speech ² may affect practices too and further promote public policy interests in trade mark law.

UR - https://ssrn.com/abstract=3188013

M3 - Working paper

BT - Public Policy limitations of trade mark subject matter – An EU perspective

PB - Social Science Research Network (SSRN)

ER -