International Intellectual Property

International Intellectual Property

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Daniel J. Gervais

International Intellectual Property: A Handbook of Contemporary Research provides researchers and practitioners of international intellectual property law with the necessary tools to understand the latest debates in this incredibly dynamic and complex field. The book contains both doctrinal analyses and groundbreaking theoretical research by many of the most recognized leading experts in the field. It offers overviews of the major international instruments, with specific chapters on the Berne and Paris Conventions, the Patent Cooperation treaty and several chapters that discuss parts of the TRIPS Agreement. The book can also be used by students of international intellectual property to obtain useful knowledge of major institutions and instruments, and to gain an understanding of ongoing discussions.

Chapter 12: Reconciling international obligations to protect health and trademarks: A defense of trademarks as property

Sam F. Halabi

Subjects: law - academic, intellectual property law, public international law

Extract

This chapter explores the increasing confrontations between states’ obligations to protect trademarks under international agreements and states’ duties to protect their citizens’ health under international human rights law. Trademark holders have asserted international protections for their logos, images, symbols and words to thwart regulatory efforts to use graphic warnings to inform consumers about the risks of alcohol and tobacco consumption, fight child malnutrition through promotion of breastfeeding and protect consumers from packaging and labeling tactics which hide health risks. In response, governments have invoked their responsibility to respect, protect and fulfill the right to health, including the duty to protect citizens from threats posed by third parties. Scholars exploring these confrontations have tended to include trademark holders’ challenges as another variety of the problems caused by ‘propertization’ of trademarks. According to their critique, lawmakers in industrialized states have over recent decades expanded the circumstances under which trademark holders may assert their rights to prohibit unauthorized uses of their marks (even for political commentary or truthful comparative advertising), enjoin actions by third parties that might diminish the value of a mark (even if it is not an unauthorized use nor in the course of trade), and demand compensation where regulatory measures result in direct or indirect expropriations of marks. Critics of trademark propertization assert that before this process unfolded, trademark law focused on the effect a mark or tradename had on consumers, providing an inexpensive source of product information that the law reasonably protected from imitators.

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