Intellectual Property, Unfair Competition and Publicity
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Intellectual Property, Unfair Competition and Publicity

Convergences and Development

Edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly

Dealing with rights and developments at the margin of classic intellectual property, this fascinating book explores emerging types of regulations and how existing IP regimes inform and influence the judicial and legislative creation of “substitute” IP rights.
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Chapter 12: Public domain at the interface of trade mark and unfair competition law: The case of referential use of trade marks

Nari Lee


The distinction between the public and the private domain is central to any legal system and the rule of law. The balancing of the interests of the private and the public is a perennial theme for decision-making and scholarship in intellectual property. In intellectual property, the public-private distinction becomes more complex, as the law not only has to define the legal boundary of a private right, the law needs to construct and define the correlating object itself, without tangible boundary. Additionally, when the values are generated by associating with what has been previously accepted as the scope of a right, assigning rights to the claims over the values arising out of the association is also one important task of the law. Two aspects of the law in the distinction of the public and private spheres have been highlighted in the previous chapters in this book. First, the law may protect expressions, signs, images and information in the private sphere against harm from undue intrusion of the public, as in the case of privacy and confidence. Although there are available alternative means of regulation and protection, such as contractual and technical self-help measures, the law provides a safety net of protection when such measures fail to protect. Secondly, not all the values arising out of intangible resources are to be attributed as rights and the law of intellectual property delineates the boundary of the private property right.

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