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The trade mark defences meet copyright: fair use or three step test?

Ilanah Fhima

Keywords: trade marks; Europe; trade mark infringement; defences; fair use

This discussion presents two competing explanations for the contours of the defences to trade mark infringement in Europe. It is tempting to view the defences as a form of ‘fair use’. However, analysing the nature of the copyright defences demonstrates that the European trade mark defence cases seem to have a lot more in common with the restrictiveness of the three step test employed in international copyright instruments, rather than the flexibility of more general fair use defences. Thus, this discussion considers the nature of fair use, and the three step test (the international standard employed to measure the legality of national copyright defences) and how they differ. It then highlights the characteristics of the European trade mark defences that resemble the three step test. It concludes with a consideration of whether Europe would be better off with a more flexible fair use style approach and the extent to which fair use has quietly crept into the trade mark system.

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