The Public Interest in European Trade Mark Law

Publication details

Fhima, Ilanah; (2017). The Public Interest in European Trade Mark Law. Intellectual Property Quarterly, 4 pp. 311-329.

Abstract 

The piece, winner of the ECTA Award 2018, attempts to track the various cases in which the public interest behind a provision in EU trade mark law has been identified by the Court of Justice of the EU (CJEU) and to demonstrate the impact that that public interest has had on how provisions of European trade mark law are interpreted.

It is Dr Fhima’s contention that while the public interest plays a central role in European trade mark law, its importance is often not acknowledged explicitly by the CJEU. Moreover, there is no single public interest in trade mark law. Instead, those interpreting European trade mark law have identified competing interests. Where the public interest is raised, it plays a crucial role.

This piece seeks to demonstrate that where the question is raised in the registrability context, the articulation of the public interest leads to the answer favouring a reduction in the scope of trade mark law, whereas where the context is one of infringement, the different articulation of the public interest means that the question is answered in a way that expands the scope of trade mark law. Indeed, this is so much the case that identical terms can be interpreted in diametrically opposite ways in the two contexts.