Publication details
Olteanu, Luminiţa, ‘The “trade-mark-law-and-innovation” trap: why it would be wise to conceptualise innovation outside the realms of dilution protection’ 2022 17(8) Journal of Intellectual Property Law & Practice 659.
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, policy makers, courts and international organisations 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 conceptualised in the realms of trade mark law. Furthermore, the article challenges the relationship between brand value and innovation by way of scrutinising the methodology adopted by the World Intellectual Property Organisation for 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 which will eventually undermine the purposes for which it was adopted.
Read a copy of this article: here.
The image ‘Trojan Horse’ by 'No Matter' Project is licensed under CC BY-NC-ND 2.0.