Show Less
You do not have access to this content

Rethinking Intellectual Property

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini

Intellectual property law is built on constitutional foundations and is underpinned by the twin freedoms of freedom of expression and freedom of economic enterprise. In this thoughtful evaluation, Gustavo Ghidini offers up a reconstruction of the core features of each intellectual property paradigm, including patents, copyright, and trademarks, suggesting measures for reform to allow intellectual property to become socially beneficial for all.
Show Summary Details
You do not have access to this content

Chapter 4: Firms’ identity and brand value in the regime of trademarks

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini


There are other factors, emotive as much as rational, which still today divide attitudes towards the legal protection of trade-marks. Pro-branders argue for generous extensive support, branding-sceptics for limited and controlled assistance. I shall label the former green-lighters and the latter red-lighters. I declare at once that my own inclination has long been to see red, rather than green.

(W. Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant?)

The present European regime of registered trademarks is the expression of a legislative framework that, since the late 1980s, has imposed radical shifts on several principles of traditional trademark law (‘the classic regime’), shaped by national legislations under the aegis of the Paris Universal Convention (articles 6–9).

The new framework (‘the reform’) was based on Directive 89/104/EEC and Regulation (EC) No. 40/1994. It was amended (in some secondary aspects) about twenty years later by Directive 2008/95/EC and Regulation (EC) No. 207/2009. In turn, the 2008 and 2009 legislation has been modified by the recent ‘Trade Mark Reform Package’ of 2015 (Directive 2436 and Regulation 2424, the former entered into force on 12 January 2016, the latter on 23 March 2016).1 The innovations carried by these more recent acts, though not negligible,2 do not basically alter the systemic tenets and jurispolitical inspiration of the basic reform dating back to the late 1980s and early 1990s.

The ‘reform’, including the 2015 ‘package’, essentially attempts to reconcile two fundamental objectives, reflecting different...

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information

or login to access all content.