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The ‘trade-mark-law-and-innovation’ trap : why it would be wise to conceptualize innovation outside the realms of dilution protection
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Olteanu, Luminta (2022) The ‘trade-mark-law-and-innovation’ trap : why it would be wise to conceptualize innovation outside the realms of dilution protection. Journal of Intellectual Property Law & Practice, 17 (8). pp. 659-673. doi:10.1093/jiplp/jpac062 ISSN 1747-1532.
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Official URL: https://doi.org/10.1093/jiplp/jpac062
Abstract
Over the years, the policy underpinnings of trade mark protection against dilution have been severely challenged. In an attempt to find new justifications for dilution protection, policymakers, courts and international organizations have laid their eyes on the relation between trade marks, brand value and innovation. More specifically, they suggest that trade mark rights are both benchmarks and drivers of innovation.
This contention however is as appealing as it can be deceiving. Drawing on the recent scholarship concerned with the relation between trade marks, brands and innovation, the article raises some questions with respect to the ‘dark side’ of innovation as conceptualized in the realms of trade mark law. Furthermore, the article challenges the relationship between brand value and innovation by way of scrutinizing the methodology adopted by the World Intellectual Property Organisation in gauging innovation and brand value.
The conclusion argues that since brands can be used anticompetitively or for promoting the ‘wrong’ type of innovation, scepticism is required in construing and applying dilution law guided by the ‘trade mark law and innovation’ paradigm. Otherwise, the protection afforded to trade marks with reputation risks becoming a Trojan horse that will eventually undermine the purposes for which it was adopted.
Item Type: | Journal Article | ||||||||
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Subjects: | K Law [Moys] > KN Common Law, Private Law | ||||||||
Divisions: | Faculty of Social Sciences > School of Law | ||||||||
Library of Congress Subject Headings (LCSH): | Trademarks -- Law and legislation, Technological innovations, Branding (Marketing) | ||||||||
Journal or Publication Title: | Journal of Intellectual Property Law & Practice | ||||||||
Publisher: | Oxford University Press | ||||||||
ISSN: | 1747-1532 | ||||||||
Official Date: | August 2022 | ||||||||
Dates: |
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Volume: | 17 | ||||||||
Number: | 8 | ||||||||
Page Range: | pp. 659-673 | ||||||||
DOI: | 10.1093/jiplp/jpac062 | ||||||||
Status: | Peer Reviewed | ||||||||
Publication Status: | Published | ||||||||
Access rights to Published version: | Open Access (Creative Commons) | ||||||||
Date of first compliant deposit: | 14 September 2023 | ||||||||
Date of first compliant Open Access: | 14 September 2023 |
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