Lee, Nari --- "Public domain at the interface of trade mark and unfair competition law: The case of referential use of trade marks" [2014] ELECD 238; in Lee, Nari; Westkamp, Guido; Kur, Annette; Ohly, Ansgar (eds), "Intellectual Property, Unfair Competition and Publicity" (Edward Elgar Publishing, 2014) 309

Book Title: Intellectual Property, Unfair Competition and Publicity

Editor(s): Lee, Nari; Westkamp, Guido; Kur, Annette; Ohly, Ansgar

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857932617

Section: Chapter 12

Section Title: Public domain at the interface of trade mark and unfair competition law: The case of referential use of trade marks

Author(s): Lee, Nari

Number of pages: 31

Abstract/Description:

The distinction between the public and the private domain is central to any legal system and the rule of law. The balancing of the interests of the private and the public is a perennial theme for decision-making and scholarship in intellectual property. In intellectual property, the public-private distinction becomes more complex, as the law not only has to define the legal boundary of a private right, the law needs to construct and define the correlating object itself, without tangible boundary. Additionally, when the values are generated by associating with what has been previously accepted as the scope of a right, assigning rights to the claims over the values arising out of the association is also one important task of the law. Two aspects of the law in the distinction of the public and private spheres have been highlighted in the previous chapters in this book. First, the law may protect expressions, signs, images and information in the private sphere against harm from undue intrusion of the public, as in the case of privacy and confidence. Although there are available alternative means of regulation and protection, such as contractual and technical self-help measures, the law provides a safety net of protection when such measures fail to protect. Secondly, not all the values arising out of intangible resources are to be attributed as rights and the law of intellectual property delineates the boundary of the private property right.