Kritika: Essays on Intellectual Property
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Kritika: Essays on Intellectual Property

Volume 2

Edited by Gustavo Ghidini, Hanns Ullrich and Peter Drahos

The fields of intellectual property have broadened and deepened in so many ways, and at such pace, that there is a tendency for academic commentators to focus on the next new thing, or to react immediately to judicial developments, rather than to reflect more deeply on the greater themes of the discipline. Kritika: Essays on Intellectual Property is a series of books designed to fulfil this role by creating a forum for essays that take a critical, long-term approach to the field of intellectual property. Volume 2 covers issues such as inter alia the current limits of knowledge and approaches to intellectual property, a functional account of intellectual property rights, China’s approach to innovation and intellectual property, the emergence of multi-layered IP-protection for designed objects, and the trajectory of increased protection for intellectual property.
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Chapter 6: The development of trade marks into common names of products: a strong push towards a purely objective view of language evolution

Vincenzo Di Cataldo

Abstract

The article considers the rules regarding the development of trade marks into common names of products. EU Law now says that a trade mark that has become the common name of the product in respect of which it is registered can be revoked only if this is the ‘result of acts or inactivity of the proprietor’. This rule is generally interpreted in the sense that if the trade mark holder shows an ‘activity’ in defence of the trade mark (e.g., bringing legal actions against competitors and intermediaries using the trade mark), there is no ground for revocation. This rule comes from the idea that the trade mark becoming generic is something regarding only the trade mark holder and his competitors, without considering the interest of the public. In the light of the interest of the public, there is no reason to ‘save’ the trade mark from become generic, even if the proprietor is strongly (but with no positive result) trying to avoid this. The author identifies the historical reasons for the traditional rule and proposes overcoming it, in the light of the consideration of the interests of the market. The article closes saying that the latest decisions of the EU Court of Justice (Björnekulla and Kornspitz) seem to give a strong push towards a purely objective doctrine of the development of the product’s common name. Keywords Trade mark; trade mark becoming generic; activity of the trade mark holder; revocation

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