Chapter 7: Controlling the power of brands: in search of a balanced approach via the international rule of law
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This chapter explores the existing legal framework for tools, which would allow arbitrators in trade mark investment disputes to approach the adjudication in a balanced manner. It offers an analytical approach, which is normatively underpinned by the international rule of law as found in the 2012 UN Declaration (thick definition). Cases presented in Chapter 1 should be adjudicated in the broader normative framework of international law. That means that arbitrators should avoid an approach, which limits their consideration to the provisions of international investment treaties only. It is argued here that particularly in cases of trade mark investments, arbitrators have an increased duty of knowing the law (iura novit curia/arbiter). Only when arbitrators know the rules of trade mark law (distinctive character, the importance of the average consumer and market context) is there a possibility to avoid the over- or under-protection of trade marks under investment treaties.

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