Editor's note: Norwegian Intellectual Property Office (NIPO) The city of Oslo rejected the Norwegian sculptor Gustav Selvik Several applications for trademark registration of works that are about to enter the public domain. NIPO The reason for the rejection is, These works lack significant distinguishing features, Descriptive only, It's just the shape that gives the commodity its substantial value, It shall not be registered as a trademark. Slu city refused to accept NIPO Decision to reject, Appeal to the appeal Board. Prediction details, Read on.

[background] Norwegian Intellectual Property Office (NIPO) The city of Oslo rejected the Norwegian sculptor Gustav Selvik Several applications for trademark registration of works that are about to enter the public domain. NIPO The reason for the rejection is, These works lack significant distinguishing features, Descriptive only, It's just the shape that gives the commodity its substantial value, It shall not be registered as a trademark. The dismissal of legal grounds is based on "Directive of the European Parliament and of the Council on the harmonisation of trademark laws in the Member States (The first 2008/95/EC No) " (Hereinafter referred to as "European Union regulation 2008/95/EC Number instruction" ) The first 3. 1 modified "Norwegian trademark law" . sculpture "The Angry Boy (Sinnataggen) " , Gustav Selvik The city of Oslo refused to accept NIPO Decision to reject, Appeal to the appeal Board. In the opinion of the Appeal Board, except for the grounds set out in the decision for dismissal, This case shall also apply "European Union regulation 2008/95/EC Number instruction" The first 3. 1 (f) Provision of article, That is, a trademark that violates public policy or social morality shall not be registered. With respect to the application of this Article, The Appeals Committee was unsure whether individuals could be allowed to claim exclusive market access to works of art that had become public cultural heritage, This exclusive right excludes even the heirs of the author of the work. Therefore, The appeal panel asked the court of the Association of European Free Trade Countries (Court of Justice of the European Free Trade Association States, EFTA) To rule on the matter: Apply for an exclusive right (copyright) A defunct work of art shall be registered as a trademark, Whether or not to be in a particular situation "European Union regulation 2008/95/EC Number instruction" The first 3. 1 (f) A situation where registration is prohibited, That is, a trademark that violates public policy or social morality shall not be registered? If the answer to that question is yes, Whether the reputation and cultural value of the artwork involved play a decisive role in the assessment?

[conclusion] EFTA The court first reaffirms, Part of the trademark registration defects, Registration requirements can be met through remediation, For example, a mark is not registered because it lacks distinctive features, Significant characteristics can be gained from the subsequent use of the logo in the market. but, "European Union regulation 2008/95/EC Number instruction" The first 3. 1 (f) The circumstances in which registration is prohibited by the Article do not fall into the above circumstances, Even if the symbol later acquired a prominent feature, Nor can it eliminate its own defects in violation of public policy or social morality. Therefore, The court finds that the issue here is, An attempt to separate a work of art from the public domain of cultural heritage, Whether it should be prohibited because it violates public policy or social morality? That's all, Court reminder, The work applied for registration as a trademark was previously protected, It doesn't mean it can be based on "European Union regulation 2008/95/EC Number instruction" The first 4. 4 (c) (iii) Provision of article——A trademark that infringes another person's copyright shall not be registered——reject. The court held that, Refusing trademark registration on the grounds that it violates social morality, This is usually applied to cases where the mark applied for registration may offend consumers, For example, the trademark is used in a way that damages intellectual works. As for the second case, Refusing to trademark a work of wisdom on the grounds that it violates public policy, It can only be that the logo contains only the public domain works, Allowing it to be registered as a trademark poses a real threat to the fundamental interests of society. In view of this, The court noted that trademark works were specially created, And works sold exclusively as trademarks, Pose no threat. Even if it's based on a smart work, If the consumer can distinguish and will not confuse the trademark with the basic wisdom work, Then it's not a threat. In principle, The court found that there was application "European Union regulation 2008/95/EC Number instruction" The first 3. 1 (f) Article prohibits the possibility of using public domain works of art to register as trademarks. but, The court emphasized that the prohibition clause was an exception, The specific circumstances of each case should also be taken into account.

[comment] In my opinion, There is no need to restrict the use of public domain intellectual works as trademarks, Because the two concepts serve completely different purposes. The purpose of copyright protection is to encourage authors to create works, To enrich the public cultural heritage, The purpose of trademark right protection is to facilitate consumers to distinguish the sources of goods and services. Individuals obtaining trademark registration is not as some views suggest, Means that the work on which the trademark is based is itself no longer in the public domain, Because the act of registration does not prevent the public from having access to a work from the moment it enters the public domain, Such as the right to reproduce or freely distribute the work. It's worth noting, The natural placement of the above works is in the public domain, The exclusive rights enjoyed by the author constitute an exception to the rule. Therefore, There is no reason to use the trademark of an intellectual work that has been protected due to its originality, Be treated differently from other types of trademarks. Go further, This does not preclude the fact that trademarks containing only well-known works of wisdom are generally weaker than other trademarks. Therefore, I think it is fair and reasonable to allow the use of intellectual works registered trademarks, Because authors can still prohibit others from registering their works as trademarks while their works are protected, And once it's in the public domain, Certain conditions still need to be met before it can be registered for use as a trademark.

compile: Liu Dan, Esabarry Legal Counsel source: Esabaril (ELZABURU)