A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Daniel J. Gervais
Chapter 12: Reconciling international obligations to protect health and trademarks: A defense of trademarks as property
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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