Trademark Law and the Public Domain

To clarify the notion of the public domain in relation to the trademark system, several definitions can be considered that have arisen from reflections on the meaning and function of the public domain. Legal status definitions, typically, require public domain material to be unencumbered by intellectual property rights. They focus on material that is ineligible for protection, or that no longer enjoys protection after the expiry of protection. As the rationales underlying trademark law necessitate registration to be renewable indefinitely, legal status definitions shed light on a particular problem: the risk of trademark rights being used as a vehicle to re-monopolize material, in respect of which other forms of intellectual property with a limited term of protection have already expired. Public domain definitions focusing on freedom of use, by contrast, allow the development of a broader concept of the public domain. Instead of asking whether material is free from trademark rights altogether, they pose the question whether material can be used freely. The public domain is thus understood to encompass user freedoms resulting from limitations and exceptions. Following this more flexible approach, public domain material need not be entirely free from trademark rights. The public domain also includes those user freedoms that remain irrespective of the acquisition of trademark protection. This approach offers the opportunity to take into account the various limits set to trademark rights – inherent limits following from the confinement of protection to use in trade and use as a trademark, and limits following from the adoption of exceptions. The present attempt to describe the relationship between trademark law and the public domain focuses on differences between legal status definitions requiring material to be unencumbered by trademark rights, and freedom of use definitions including breathing space for unauthorized use. Two hypotheses play a central role in this context. Firstly, it can be hypothesized that the adoption of a freedom of use perspective in the area of trademark law is adequate because this perspective recognizes that exclusive rights granted in trademark law have a less absolute character than the exclusive rights awarded in other fields, such as copyright and patent law. The potentially limited impact of trademark rights on the availability of trademarked material can be factored into the equation. Secondly, a freedom of use approach may be important in the light of current initiatives at the international level. It broadens the debate. Besides eligibility criteria and limited terms of protection, limitations and exceptions enter the picture