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"State liability for regulating trade marks and brands: the dialogue of two bodies of law" [2019] ELECD 1830; in Potocnik, Metka (ed), "Arbitrating Brands" (Edward Elgar Publishing, 2019) 170

Book Title: Arbitrating Brands

Editor(s): Potočnik, Metka

Publisher: Edward Elgar Publishing

Section: Chapter 6

Section Title: State liability for regulating trade marks and brands: the dialogue of two bodies of law

Number of pages: 45

Abstract/Description:

Chapter 6 presents a practical application of the tests explored in previous chapters. It explores the nuances of trade mark expropriation claims, parameters of FET violation in cases of trade mark registrations and finally investigates state’s right to regulate and limit trade mark rights in public interest. This analysis is done for all case studies from Chapter 1 and with the use of the “toolbox of translators” or the “attributes of property” lens and represents the most original part of the book, as it introduces an approach, not yet known in the literature. Despite the award rendered in the Philip Morris v Uruguay case, this book demonstrates that a more structured approach to trade mark investments is needed, because it will result in solutions faithful to principles enshrined in trade mark law. Importantly, the distinctive character, the average consumer and the market context of allegedly expropriated trademarks is not to be overlooked.