Research Handbook on Human Rights and Intellectual Property
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Research Handbook on Human Rights and Intellectual Property

Edited by Christophe Geiger

Research Handbook on Human Rights and Intellectual Property is a comprehensive reference work on the intersection of human rights and intellectual property law. Resulting from a field-specific expertise of over 40 scholars and professionals of world renown, the book explores the practical and doctrinal implications of human rights on intellectual property law and jurisprudence. In particular, the chapters scrutinize issues related to interactions among and between norms of different legal families, the role of human rights in development of the balanced intellectual property legal framework, standing case-law of national and regional courts and intellectual property offices reconciling overlapping rights and obligations, and identify the practical significance of different human rights for the exercise of intellectual property rights.
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Chapter 15: Fundamental rights in the practice of the European Trade Mark and Designs Office (OHIM)

Philipp von Kapff


At first sight the topic looks surprising – of course fundamental rights are well respected in the practice of the Office for Harmonization in the Internal Market (Trade Marks and Designs) (‘OHIM’ or ‘the Office’). Looking into the provisions with a closer eye, however, doubts start to rise over the details. This chapter aims to discuss a number of current problems in trade mark law in the light of fundamental rights. The topic will be looked upon in eight sections: (1) OHIM is bound by various, partially overlapping sets of fundamental rights; (2) procedural fundamental rights are most important for the practice of the Office and the Boards of Appeal. To a very large extent they are all codified in the Regulations; (3) (almost) everybody has the right to an effective judicial control before the Boards of Appeal, the General Court and the Court of Justice; (4) the fundamental right of equal treatment, to the contrary, has very little impact in the practice of the Office; (5) trade marks are protected by the fundamental right to property. However, nature and life cycle are very peculiar; (6) a right to intellectual property may be balanced, according to general principles, with public interests, in particular codified as absolute grounds for refusal; (7) whether public interests and property rights are well balanced in cases of relative grounds for refusal is doubtful; and (8) the fundamental policy right of consumer protection has (or should have) little impact on trade mark law, which rather regulates competition aspects between companies.

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