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Riding on the Coat-Tails of Traditional Cultural Expressions

Olteanu, Luminița (2020) Riding on the Coat-Tails of Traditional Cultural Expressions. International Journal for the Semiotics of Law, . ISSN 0952-8059. E-ISSN 1572-8722. (doi:10.1007/s11196-020-09725-6) (KAR id:79599)

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https://doi.org/10.1007/s11196-020-09725-6

Abstract

Matters related to the protection of traditional cultural expressions (‘TCEs’) or expressions of folklore (‘EoFs’) are sensitive and intricate as a blend of legal, economic, philosophical and anthropological considerations jostle to capture their core features. This results in disparate views surrounding what should qualify as TCEs or EoFs, who should be considered their ‘owner’ (assuming that ownership per se is conceptually compatible with these items), which is the most appropriate legal protection regime and how broad their scope of protection should be. Drawing from these various accounts on TCEs, this article focuses on the interaction between TCEs and EoFs originating on the European continent and the European Union (‘EU’) trade mark legislation. Specifically, this article examines whether the limitations of the effects of trade mark rights and of the absolute grounds of refusal, as developed by the case law of the Court of Justice of the European Union, are effective in preserving the cohesion of TCEs. This article advances the thesis that registration of TCEs and EoFs as trade marks generates an imbalance between the rights of the trade mark owner and the defences available to others under the EU trade mark law framework. Furthermore, such an imbalance is likely to hinder the unfettered circulation of TCEs and undermine their original meaning. Lastly, in some cases, trade mark registration of TCEs contributes to their appropriation and misappropriation. The article concludes that, de lege ferenda, the direct exclusion of TCEs as eligible subject matter for trade mark registration is preferable to seeking a post factum remedy.

Item Type: Article
DOI/Identification number: 10.1007/s11196-020-09725-6
Uncontrolled keywords: Traditional cultural expressions; Free riding; Dilution; Cultural appropriation; Trade marks
Subjects: K Law
Divisions: Divisions > Division for the Study of Law, Society and Social Justice > Kent Law School
Depositing User: Sian Robertson
Date Deposited: 17 Jan 2020 12:02 UTC
Last Modified: 16 Feb 2021 14:10 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/79599 (The current URI for this page, for reference purposes)
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