[pp.int.general] trademarks

[Reinier Bakels]

The Swedish pirate party is not (no longer) opposed against trademarks. In general, I would agree that trademarks are less a problem than e.g. copyright and patents. But there are some caveats, an eBay attorney told me lately. In particular in France there have been some unpleasant court cases. There are (at least) three types of cases.

Firsty, trademarks may not be used to sell counterfeit goods. While this is somehow obvious, it causes major problems for eBay *IF* eBay is required to check all offers on its site in advance. A "notic and takedown" rule would be more appropriate.

Secondly, there is only European exhaustion for trademarks.  If you buy something in the US, you are not allowed to sell it second hand in the EU under its registered trademark, vice versa. There used to be a worldwide exhaustion (first sale) rule for trademarks ...

Thirdly, manufacturers of (predominantly luxury) products sometimes try to prevent their products from being sold by (cheap) retail chains, because such products depend on their image (cynics may argue that they are actually not much more than just image ...), which would require a luxury outlet. In my country, Dior tried to prevent discount retail chain Kruidvat (owned by Evora holding, Google Dior Evora) from selling its perfumes, but because trademark law does not prevent that inside the EU, Dior resorted to copyright law. But the court decided on the basis of a special rule in the Dutch copyright act allowing images of a product to be used free of copyright in advertising, catalogs etc. to the extent needed for trade.

While this story has a happy end, manufacturers of luxury products will continue to try to exploit their trademarks and copyright to protect the exclusivity of their products. Trademarks serve the purpose to protect the identification and reputation function of a brand identification. Even if products are little more than just a reputation.

Incidentally, abuse of a trademark by its owner is legally allowed. While one of the reasons for trademark infringement is the risk of *confusion*, trademark owners actually use trademarks purposely to confuse their prospective customers, in particular to fake quality.

Trademarks are not as innocent as they appear at first sight. Anyway, imho the PPs should advocate re-introduction of worldwide exhaustion. Private import of counterfeit products should be allowed (customs not stopping tourists who bought a fake Rolex on the market in Bangkok ...). And confusing use of a trademark buy its owner should also be considered illegal.

reinier      



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