The Innovation Society and Intellectual Property
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The Innovation Society and Intellectual Property

Edited by Josef Drexl and Anselm Kamperman Sanders

Intellectual property (IP) rights impact innovation in diverse ways. This book critically analyses whether additional rights beyond patents, trademarks and copyrights are needed to promote innovation. Featuring contributions from thought-leaders in the field of IP, this book examines the check and balances that already exist in the IP system to safeguard innovation and questions to what extent existing IP regimes are capable of catering to new paradigms of innovation and creativity.
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Chapter 6: Free riding on the repute of trade marks: does protection generate innovation?

Ansgar Ohly

Abstract

The link between trade marks and innovation is less obvious than the role of patents as incentives for technological progress. But trade marks do play an essential role in a market economy. They create ‘channels of communication’, without which consumers could not make reliable distinctions between competing products and services. This information asymmetry would also undermine producers’ incentives to offer high quality and high image products. While the positive economic effects of protection against confusion seem to be generally accepted, the merits of antidilution and antimisappropriation provisions are less certain. Sometimes trade marks can even create obstacles to innovation. This chapter argues that policy makers and courts should be aware that trade marks are not fully fledged property rights over words or devices, and that their protection should remain restricted accordingly.

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