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27 - Public Order in the Light of Aesthetic Theory: The Copyright/Trademark Interface after Vigeland

from B - IP Overlaps

Published online by Cambridge University Press:  29 December 2020

Niklas Bruun
Affiliation:
Hanken School of Economics (Finland)
Graeme B. Dinwoodie
Affiliation:
Chicago-Kent College of Law
Marianne Levin
Affiliation:
Stockholm University Department of Law
Ansgar Ohly
Affiliation:
Ludwig Maximilian University of Munich Faculty of Law
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Summary

Annette Kur’s publications on the coherence of the intellectual property system are an incessant source of inspiration for further research and critical reflection. In one of her landmark essays on overlapping intellectual property rights, she develops a general framework for the assessment of cumulative protection. According to this framework, the combination of different intellectual property rights is not problematic per se. In principle, the cumulation of rights is acceptable as long as the individual protection regimes involved are balanced in the sense that the prerequisites for obtaining protection are appropriately aligned with the contents and limits of exclusive rights.2 From this perspective, it is not the cumulation of rights that causes overprotection problems. By contrast, these problems are symptoms of imbalances within the protection systems involved.3 If the prerequisites for obtaining different types of intellectual property rights remain distinct from each other, and the checks and balances in the different protection regimes are sufficient to prevent excessive protection, the overlap is unlikely to obstruct competition and should be deemed permissible.4 If, however, the requirements for obtaining protection in different regimes converge while the contents and limits of protection remain unchanged, overlapping protection raises the problem of “asymmetric convergence” and requires appropriate countermeasures.5

Type
Chapter
Information
Transition and Coherence in Intellectual Property Law
Essays in Honour of Annette Kur
, pp. 332 - 343
Publisher: Cambridge University Press
Print publication year: 2021

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