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

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini

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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).

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