Are Brands Untouchable? How Availability and Use of Trademarks Can Be Restricted for Furthering Public Interests
Are brands untouchable? Do commercial enterprises have complete freedom to register and use any kind of trademark? Can public authorities prohibit the registration and use of signs under certain circumstances? This article tries to provide some answers to these questions. It does so by looking at several national and international provisions and case law regarding the bans on registration of disputable trademarks such as immoral or scandalous signs as well as at regulatory measures aimed at prohibiting or restricting the use of signs in connection with (what are increasingly considered) harmful products including alcohol, certain foodstuffs and tobacco (particular attention is devoted to plain packaging of cigarettes, health warnings and other packaging-related measures).\ud \ud The paper argues that trademarks are indeed “touchable” and economic operators can be prevented from registering and using certain brands on public interests grounds. It concludes that what trademark registrations offer their owners is not a positive right to use the brand, but just a negative right to prevent others from exploiting it (ius excludendi alios): which, in particular, allows states to lawfully restrict use of trademarks for protecting public interests. Similarities between the bans on registration of controversial brands and regulatory measures affecting trademarks’ use are also highlighted.\ud \ud The scope of the paper’s analysis is not limited to just one jusridiction. It instead takes into account several legal systems such as the European Union, the United Kingdom, the United States, and Australia. Significant number of cases and measures from these and other countries are analysed.
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