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Contribution to Collected Edition

How Public Is the Public Domain? The Perpetual Protection of Inventions, Designs and Works by Trademarks


Köklü,  Kaya
MPI for Innovation and Competition, Max Planck Society;


Nérisson,  Sylvie
MPI for Innovation and Competition, Max Planck Society;

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Köklü, K., & Nérisson, S. (2016). How Public Is the Public Domain? The Perpetual Protection of Inventions, Designs and Works by Trademarks. In H. Ullrich, R. M. Hilty, M. Lamping, & J. Drexl (Eds.), TRIPS plus 20 - From Trade Rules to Market Principles (pp. 561-599). Heidelberg; Berlin: Springer.

Cite as: https://hdl.handle.net/11858/00-001M-0000-0024-4E6E-0
There are plenty of trademarks consisting of product shapes that effectively deter competition, although the original work or the invention giving the shape to the product (and to the trademark) is already in the public domain and should be free to be used by anyone. Trademark laws typically contain provisions declaring certain kinds of trademarks not protectable on the basis of absolute grounds for refusal. However, the legal practice reveals that these mechanisms within the trademark laws are not sufficient to safeguard the public domain. Companies frequently try to deter free competition by registering trademarks consisting of the shape of a product after they lose the exclusivity in the patent, industrial design or work that gave its value to the product and meanwhile belongs to the public domain. This problem occurs in particular in relation to popular inventions, but also to designs or characters of works that are of high commercial value. Not only in developing countries, courts seem to hesitate assessing an invention, design or work to be part of the public domain if the popularity and value of the product are significant. The most appropriate approach to solve this problem is to introduce an international mandatory regulation that overarches all intellectual property rights and explicitly safeguards the public domain. Such general principle in international law should particularly ensure that the free use of inventions, designs or works is not affected by trademarks once the underlying intellectual property right expires.