Edited by Dana Beldiman
Chapter 4: Openness in trademark law: a viable paradigm?
Most people will agree to the statement that, at least in principle, open access to subject matter covered by copyright or patents enhances public welfare – the availability of valuable achievements to many serves the common benefit. That effect is basically independent of whether or not the right-holder has consented to such use. Of course, on the other hand, it is commonly acknowledged that beyond a certain tipping point, unauthorized and unrestricted use is likely to jeopardize the incentives for bringing forth innovative achievements and creative works, ultimately resulting in market failure. It is the genuine task of intellectual property right (IPR) policy to consciously balance the beneficial effects of openness (as compelled for example, through statutory limitations or by principles of antitrust law) against the risk of impairing the market for innovation and creation. However, that does not detract from the general observation that, at least in principle, openness in the sense of participation by others is likely to yield beneficial societal effects and, under the aspect of public welfare, also positive economic results. Trademarks, on the other hand, present a different picture. As a matter of principle, marks must be unique in the sense that they indicate a single commercial source. When third parties get access to using the mark without being authorized by the trademark holder, the mark fails to meet its purpose; it no longer constitutes a trademark in the legal sense. This rule is fundamentally important and of basically universal validity.
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