Transcript Trademark Law and Cultural Heritage Marketing Strategies for SME’s based on Cultural Symbols WIPO Seminar, Geneva, May 18-20, 2009 Hendrik Jan Bulte, VU University.

Trademark Law and Cultural Heritage
Marketing Strategies for SME’s based on Cultural
Symbols
WIPO Seminar, Geneva, May 18-20, 2009
Hendrik Jan Bulte, VU University Amsterdam
introduction
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marketing strategies and trademark employability
trademark and cultural symbols: examples
current legal framework
defining the ‘cultural need’; cultural grounds for
refusal
conclusion
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Implications:

undermining the rationale of copyright law;
reviving of copyrights, remonopolising parts of cultural
heritage

redefinition of meaning in commerce and ‘definition
power’

free riding on the status, reputation and favourable
image of cultural symbols
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Phrasing the question:
Could we define a ‘cultural need’ to keep certain signs
free from trademark protection?
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MARKETING STRATEGIES AND ‘TRADEMARK
EMPLOYABILITY’
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Article 15 (1) TRIPs Agreement:
Any sign, or any combination of signs, capable of distinguishing
the goods or services of one undertaking from those of other
undertakings, shall be capable of constituting a trademark. […]
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TRADEMARKS AND CULTURE: EXAMPLES
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BPatG 9-11-1997, 24 W (pat) 188/96, GRUR 1998, p. 1021-1023
(translation from German):
“The painting of Mona Lisa is a frequently used, publicly known
advertising theme, which aims to stimulate purchases and attract the
attentiveness of the public; it will not be regarded as a source identifier, but
merely as a means to bring the products denoted into the foreground; these
advertising qualities do not equate with the distinctive character needed in
order to obtain trademark protection.”
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ECJ Shield Mark/Kist, April 3, 2003, C-283/01, A-G Colomer (§ 52):
“I find it more difficult to accept […] that a creation of the mind,
which forms part of the universal cultural heritage, should be appropriated
indefinitely by a person to be used on the market in order to distinguish the
goods he produces or the service he provides with an exclusivity which not
even its author’s estate enjoys.”
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Peer Gynt Suite (Edvard Grieg)
Solveig’s Song
Peer Gynt Suite (Edvard Grieg)
Morgenstimmung
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CURRENT LEGAL FRAMEWORK
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Article 3 TMD (grounds for refusal or invalidity):
1. The following shall not be registered or if registered shall be liable to be
declared invalid: […]
(b) trade marks which are devoid of any distinctive character; […]
(d) trade marks which consist exclusively of signs or indications which have
become customary in the current language or in the bona fide and established
practices of the trade; […]
(f) trade marks which are contrary to public policy or to accepted principles of
morality;
[…]
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Deterrent effect of potential trademark infringement
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DEFINING THE CULTURAL NEED:
CULTURAL GROUNDS FOR REFUSAL
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Implications:

undermining the rationale of copyright law;
reviving of copyrights, remonopolising parts of cultural
heritage

redefinition of meaning in commerce and ‘definition
power’
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THE END
THANK YOU!
[email protected]
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