Extract

To clarify the notion of the public domain in relation to the trademark system, several definitions can be considered that have arisen in scholarly literature from reflections on the meaning and function of the public domain. Providing an overview of different approaches, Professor Samuelson distinguishes between definitions based on the legal status of public domain material, definitions including freedoms to use protected intellectual creations, and definitions focusing on the accessibility of information resources. Legal status definitions, typically, require public domain material to be unencumbered by intellectual property rights. They focus on material that is ineligible for protection, or that no longer enjoys protection after the expiry of protection. As the rationales underlying trademark law necessitate registration to be renewable indefinitely, legal status definitions shed light on a particular problem: the risk of trademark rights being used as a vehicle to re-monopolize material, in respect of which other forms of intellectual property with a limited term of protection have already expired (1.1). Public domain definitions focusing on freedom of use, by contrast, allow the development of a broader concept of the public domain. Instead of asking whether material is free from trademark rights altogether, they pose the question whether material can be used freely. The public domain is thus understood to encompass user freedoms resulting from limitations and exceptions. Following this more flexible approach, public domain material need not be entirely free from trademark rights.