Individualism and Collectiveness in Intellectual Property Law
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Individualism and Collectiveness in Intellectual Property Law

Edited by Jan Rosén

Individualism and Collectiveness in Intellectual Property Law embraces fundamental, eternal and yet very contemporary elements in IP law dealt with in all parts of the world. There are certain classic values embedded in the protection of human effort and the creativeness of individuals. This book examines the relationship of those values to the questions inherent both in individual creativeness in a collective setting, and in the tendency to build national, regional or global monopolies based on IP rights. The respect for original ownership, the occasional need for collective management of IP rights, the idiosyncrasies of co-ownership of rights and the ever present tension to be found in encounters between exploitation of IP rights and competition law are extensively exposed in this book.
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Chapter 11: The Competitive Significance of Collective Trademarks

Alexander Peukert


Alexander Peukert* 1. INTRODUCTION This chapter deals with the protection of collective trademarks under European Union (EU) and German law. It was triggered by the remarkable statement of the ECJ in its 2009 L’Oréal decision, according to which the protected functions of a trademark include not only the essential function to guarantee the origin of goods or services, but also its other functions, “in particular that of guaranteeing the quality of goods or services and those of communication, investment or advertising”.1 The aim is to explore whether the expansionist functional paradigm of L’Oréal also applies to collective marks or whether the ownership structure and competitive significance of this type of trademark requires a different treatment compared to individual trademarks.2 The peculiarity of collective marks is their ownership structure. The holder of the right is not an individual market participant, but an association of producers of goods or suppliers of services. The members of the association entitled to use the collective mark may bring an action for infringement only if the association, as the proprietor, agrees.3 Thus, collective marks are owned by one legal person, but they may be lawfully used * Dr. iur., Professor of Law, Chair for Civil Law, Commercial Law and Intellectual Property Law, Goethe University Frankfurt/Main, Cluster of Excellence Normative Orders, 1 ECJ Case C-487/07 L’Oréal/Bellure [2009] ECR I-05185 para. 58; similar Fezer, Karl-Heinz (2009), Markenrecht, 4th edn., Munich, Germany: C.H. Beck, Einl D MarkenG para. 1-20. 2 See generally Peukert, Alexander...

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