Trademark Law Institute
Conference 'Trademark Law and the Public Interest in keeping Signs available'
Date: March 20-21, 2009
Location: Faculty of Law, Kamerlingh Onnes- building, Steenschuur 25, Leiden
PROGRAMME
Friday, March 20, 2009
Chair: Ernst Numann, Justice in the Hoge Raad (Supreme Court) of the Netherlands
13.30 Registration and coffee
14.00 Welcome
Prof. Dirk Visser, Trademark Law Institute (Leiden)
Information on Trademark Law Institute
Prof. Charles Gielen, Trademark Law Institute (Groningen)
Aim of the Conference
General Approach
14.15 Session I: Evolution and contents of the concept
14.15 Introduction I, Prof. Lionel Bently, University of Cambridge
14:45 Introduction II, Prof. Thomas Sambuc, University of Tübingen
15:15 Discussion
16.15 Coffee Break
16.30 Session II: The need to keep technical subject matter available
16.30 Introduction I, Prof. Luigi Mansani, University of Parma
16.45 Introduction II, Prof. Spyros Maniatis, Queen Mary, University of London
17.00 Discussion
18.00 Summary and conclusion
19.30 Conference Dinner
Saturday, March 21, 2009
Chair: Charles Gielen, Trademark Law Institute (Groningen)
09.00 Session III: The need to keep cultural subject matter available – Part 1:
Focus on subject matter enjoying or having enjoyed copyright protection
09.00 Introduction I, Prof. Marianne Levin, University of Stockholm
09.15 Introduction II, Prof. Ansgar Ohly, University of Bayreuth
09.30 Discussion
10.30 Coffee Break
10.45 Session IV: The need to keep cultural subject matter available – Part 2:
Focus on subject matter belonging to the cultural heritage
10.45 Introduction I, Prof. Pierre-Yves Gautier, University Panthéon-Assas, Paris
11.00 Introduction II, Prof. Martin Senftleben, Trademark Law Institute (VU University)
11.15 Discussion
12.15 Conclusion and summary of main results
Prof. Antoon Quaedvlieg, Trademark Law Institute (Nijmegen)
12.45 Closing
Information on Future Projects
13.00 Conference Lunch
DESCRIPTION
The conference aims at an in-depth discussion of the role which the public interest in keeping signs available plays in trademark law.
The introductory session I serves the purpose of laying groundwork for the following detailed analysis of different kinds of subject matter. On the one hand, attention will be devoted to the evolution of the concept of keeping signs available in ECJ case law, the relation of this concept with national precedents, such as the German concept of ‘Freihaltebedürfnis’ and the Benelux Burberry cases, and its potential connection with international rules, such as Arts. 6quinquies(B)(2) and 6ter of the Paris Convention. On the other hand, the discussion will focus on the different ways of satisfying the need to keep signs available: excluding certain signs from trademark protection altogether, offering trademark protection only if distinctiveness has been acquired, and combining general eligibility for trademark protection with limitations on the scope of resulting rights.
Session II deals with the need to keep technical subject matter available and, therefore, with an area where a trend towards the exclusion of trademark rights can be observed. Seeking to analyse the reasons for the exclusion, references will be made to patent law and patent policy. Moreover, alternative solutions will be considered, such as trademark protection for technical signs with secondary meaning, and trademark rights of limited scope.
The sessions III and IV both deal with the need to keep cultural subject matter available. In contrast to session II, an area is thus brought into focus where the grant of trademark rights is the rule rather than an exception. In this regard, two constellations are distinguished to enable a detailed and precise analysis. Session III concerns cultural subject matter that enjoys, or (until recently) has enjoyed, copyright protection. This session is intended to raise issues of overlapping trademark and copyright protection, such as an ‘artificial’ extension of the term of copyright protection, and a potential need for corresponding limitations in both protection regimes – for instance, in respect of freedom of speech.
Session IV, by contrast, deals with signs belonging to the cultural heritage. The reference to the ‘cultural heritage’ is used to clarify that the discussion focuses on cultural subject matter that has been in the public domain for such a long time that there is no remaining connection with copyright protection. The attempt to register the first nine notes of Beethoven’s piano piece ‘Für Elise’ in the Shield Mark case may serve as an example. The discussion will explore ways of ensuring the availability of universal cultural expressions while offering trademark protection. On the other hand, a potential risk of ‘privatising’ the public domain and redefining the meaning of important cultural expressions in a commercial context will be considered.
