An investigation of the extent to which European trademark rights inhibit the proper functioning of the internal market
This thesis evaluates the contribution that the co-existential nation and Community trademark systems are likely to make toward the stated aims and objectives of the internal market programme. The inauguration of the Community Trademark (CTM) creates an unprecedented facility for acquiring and enforcing unitary trademark rights. The territorial character of nationally based trademarks has inhibited the potential for economic integration. By removing barriers to inter-State trade, in principle the CTM system enables all undertakings to adapt their trading activities to the Community scale. This thesis argues that trademark decisions must be wary of granting broadening rights based on classifying trademarks as 'property'. The resultant deduction that trademarks proprietors should be endowed with wide powers may encourage monopoly rights in the marked goods. Protection must only reflect the inherent economic value of trademarks: the informative and identificatory function. The practical exploitation of other protected attributes, which merely reflect that the trademark has value may jeopardise inter-brand competition and the fulfilment of internal market objectives. Developing national and community case law is tested against the economic arguments established to judge how trademark decisions are dealing with the enduring tension between trademarks and competition. To achieve a level-playing field, there must be convergence of substantive national and Community laws. This must try to avoid the problems of over- and under-protection by establishing balance between protection of and access to trademark rights. To do so, decision makers must resolve the fundamental challenges of 'What do we want to protect in a trademark?' and from this, 'What is the content and scope of an efficient system of trademark protection?'. Of particular importance is how the small- to medium-sized enterprises, the cornerstone of Europe's economic future, respond the the new system.