Suchergebnisse

This Article analyses the new provisions in EU law that trademark rules should be "applied in a way that ensures full respect for fundamental rights and freedoms, and in particular the freedom of expression." It is pointed out how these provisions are part of a broader trend of "constitiutionalization" in EU law whereby courts increasingly rely on fundamental rights when they interpret the rules of Intellectual Property Rights (IPR). After a presentation of the historical and legislative background for the changes and the related development in copyright law, the likely impact of the new trademark rules is discussed. It is concluded that even though the constitutionalization is not going to revolutionize EU trademark law, it will require courts to consider in a more pronounced way the interests of users of trademarks (such as artists or commercial users) vis-à-vis trademark holders' interests. This in turn may affect the way courts interpret trademark law, and, in particular, give more room to the limitations and exceptions. The effects of such a development may be to limit the ability of trademark holders to push exclusivity in ways that harm cultural development, public debate, and fair competition.

This article describes and discusses the effects of collective rights administration of (individual) copyright. It points out that collectivization is driven either by en economic argument relating to the reduction of transaction costs or a cultural one relating to the protection of authors. It then claims that collectivization has the potential to affect copyright as it is perceived in the Berne Convention and in traditional copyright legislation fundamentally. The effects include a basic shift in copyright from a system based on property rules to a system based also on liability rules. The article then discusses how to best deal with these effects. It recommends that action is considered to identify and possibly remove internal barriers to beneficial collectivization, regulate societies effectively to secure innovation-interest, and to protect the interests of authors more effectively.

Abstract
It is the starting point in some jurisdictions that if a licensing agreement has been breached, the licensor may choose to establish their claims against the licensee on the basis of either contract or intellectual property law. This article argues that such a starting point should not be upheld. Not least because of developments in EU law, the intellectual property rights (IPR) system contains special remedies and procedures, which systematically and unilaterally benefit one of the parties to a contract, viz. the rightholder (licensor). The ability to have recourse against a contractual party via IPR instead of contract law ought to be limited as far as possible, i.e. restricted to those instances where this is prescribed by law. In the recent judgment of the CJEU, C-666/18 IT Development SAS, the Court held that a copyright holder/licensor must be able to rely on the remedies and procedures of the Enforcement Directive (IPRED). Consequently, freedom of choice between contract and IPR law is guaranteed in this respect. It is notable that this judgment deals exclusively with IPRED and does not have any broader effect in relation to the basic question of choice between contract and IPR law outside of the scope of the IPRED. Therefore, freedom of choice could still be limited, and licensees shielded against the special remedies and procedures which are at rightholders' disposal outside of the IPRED.***