TRADE MARKS - INTELLECTUAL PROPERTY / INTERNATIONAL / PROPERTY

Intellectual Property Quarterly, Issue 2, 2002

Trade Mark Rights - a Justification based on Property

Spyros M Maniatis

At first sight, this article on the theoretical foundations of intellectual property rights generally, and of trade mark rights in particular, may seem far removed from current problems of intellectual property practice. The author ranges from Aristotle to Locke and from Hegel to Marx; and he wrestles with the philosophical relationship between the concepts of rights and property. However, the justification for his seemingly esoteric approach is that the very idea of intellectual property, into which trade marks, patents, copyright and a variety of other more or less disparate rights are expected to fit, is open to challenge. Moreover, a strict theory of property requires the accommodation of conflicting interests. (The author quotes the comments of an English judge on the Silhouette case, according to whom it "bestowed on a trade mark owner a parasitic right to interfere with the distribution of goods, which bears little or no relationship to the proper functioning of the trade mark".) However, while considering in philosophical terms the justification for the property theory, whether based on the idea of labour or on the idea of personality, the author takes a largely traditional view of intellectual property, subject only to the point that there is also an element of "moral" justification for the existence of rights. The author quotes a wide range of trade mark cases from United States and European Community law to illustrate his thesis, starting appropriately with the bald statement in the United Kingdom Trade Marks Act 1994 that "a registered trade mark is a property right". He concludes by offering three cautionary propositions. The first is that "public policy can intervene and determine the balance of property rights, social needs and goals". The second is that, with a fuller picture of a diverse world, "outside a particular context, property on its own may be devoid of meaning": western methods of thinking are not the only methods. The third is that "the only meaningful definition of property is for specific property rights in each specific subject-matter". In this connection, Justice Holmes in Beech-Nut Packing and Lord Herschell in Reddaway are cited as complementary authorities. [20072]