ATRIP Intellectual Property series
Edited by Jan Rosén
Chapter 13: Trademark Take-over or Sui Generis Regimes: Absolute Merchandising Rights in Sports
Katja Weckström* 1. INTRODUCTION In a constitutional state, committed to liberal values, the intervention of the legislator in the market forces of free competition requires a specific justification. Economically speaking, this justification rests on the consideration that, without any such intervention, a market failure would ensue after a certain period of time.1 When considering justifications, there are two possibilities. We can consider the justification for each individual right in intellectual property, i.e., copyright, design, geographical indication or trademark, separately. Legislatures tend to do so when balancing incentives for intervention against those for non-intervention.2 Alternatively, we could consider the market position conferred by IP rights in general in a particular field, before considering whether market intervention is justified via a particular form of IP protection. The latter, i.e., horizontal intellectual property law issues are seldom considered.3 A natural consequence of this is that horizontal issues related to the rest of the legal system are also ignored, or considered from only one perspective; e.g. trademarks are balanced against freedom of expression concerns. I argue that it is here, when protection crosses over the interface * Lecturer, LL.D. Candidate University of Turku Faculty of Law. The author would like to thank John Cross, Graeme Dinwoodie, Shuba Gosh, Annette Kur for comments on previous drafts of this article. 1 Hilty, Reto M., ‘The Law Against Unfair Competition and Its Interfaces’, pp. 1–2 in Hilty, Reto M. & Henning-Bodewig, Frauke, Law Against Unfair Competition – Towards a New Paradigm in Europe?, Springer-Verlag Berlin (2007) pp. 1...
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