Intellectual Property and General Legal Principles

Intellectual Property and General Legal Principles

Is IP a Lex Specialis?

ATRIP Intellectual Property series

Edited by Graeme B. Dinwoodie

The rule of lex specialis serves as an interpretative method to determine which of two contesting norms should be used to govern. In this book, the lex specialis label is broadly applied to intellectual property and connects a series of questions: What is the scope of intellectual property law? What is the relationship between intellectual property law and general legal principles? To what extent are intellectual property laws exceptional? Drawn together by leading IP scholar Graeme Dinwoodie, these questions and others are answered carefully and reflectively by a team of expert international contributors.

Chapter 8: Intellectual property protection for fame, luxury, wines and spirits: Lex specialis for a corporate “dolce vita” or a “good-quality life”?

Irene Calboli

Subjects: law - academic, intellectual property law

Extract

In this chapter, I consider two exceptions to the general provisions (leges generales) of intellectual property law governing the protection of trademarks and geographical indications of origin (GIs). In particular, I consider the leges speciales that have been introduced with respect to two specific subject matters by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): anti-dilution protection for well-known marks, as provided in Article 16.3, and anti-usurpation protection for GIs identifying wines and spirits, as provided in Article 23. This latter protection could be extended to other GIs as part of the built-in agenda also introduced by TRIPS. In both cases, these leges speciales enhance the protection granted, respectively, to well-known marks and GIs identifying wines and spirits, beyond the protection granted to marks and GIs in general (which is limited to acts that could amount to confuse and mislead consumers in the marketplace). Based upon this analysis, I explore whether these leges speciales should be viewed merely as an additional example of the growing pressure in favor of enhanced protection that has characterized intellectual property debate in the past decades, or whether Articles 16.3 and 23 of TRIPS could also be explained differently.

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