Document Type

Article

Publication Year

2009

Journal Title

The Trademark Reporter

Abstract

In recent years, there has been a growing discourse at the intersection of intellectual property and human rights. Whether there is a direct connection between intellectual property, or the subjects of intellectual property, on the one hand, and human rights, on the other, has been the subject of lively debate. Most recently, the discussion has turned to the field of trademarks, which has prompted the question, Are trademarks human rights? In this article I seek to explore this question, and to consider directly whether there is a proper place for trademarks within the human rights framework-whether trademarks and human rights are immiscible, like oil and water, or whether they are a great combination that creates a whole that is bigger than the sum of its parts, like chocolate and peanut butter.

The analysis begins with a discussion of human rights generally, both as those rights are defined and as they are realized within an overarching legal structure. Next, I examine the inclusion of intellectual property rights within international human rights instruments and explore the dimensions of implementation and interpretation of intellectual property rights pursuant to those instruments. I conclude that, in contrast to copyrights and patent rights, trademark rights are not the types of rights that are considered to be human rights per se. The third part of the analysis discusses the inclusion of intellectual property within the property rights provisions of the European Convention of Human Rights and Fundamental Freedoms. Under the jurisprudence of the European Court, intellectual property rights fall squarely within the parameters of property rights, and a recent opinion by the Grand Chamber makes clear the inclusion of trademark registrations and applications within that property right. The fourth part examines the human right to property, including how that right has developed in both breadth and depth over time. Next, I examine trademark rights as property rights, and consider the question, Are trademark rights property rights within United States trademark law? While historically there has been great resistance to defining trademark rights as a form of property right, I posit that this recalcitrance has grown out of both a misconception of the nature of property rights and a lack of recognition of the nature of trademark rights in relation to other forms of property rights. In the last part, I conclude that trademarks, while not human rights per se, can be human rights insofar as they exist as a form of property right, and caution that to the extent that trademark rights are viewed from the lens of human rights, they must be balanced with other rights as well, such as the right to culture.

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