PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS FROM INAPPROPRIATE WITHIN THE FRAMEWORK OF CONVENTIONAL TRADEMARK LAW SYSTEMS
Since few decades ago, the use of traditional insignias on commercial products has been increasing, across the globe. In particular, the use of indigenous insignias on commercial products of non-indigenous origin is often in countries such as USA, Canada, Australia or New Zealand where there are lar...
| Main Authors: | , |
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| Format: | Article |
| Language: | deu |
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University of Rijeka, Faculty of Law
2022-01-01
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| Series: | Zbornik Pravnog Fakulteta Sveučilišta u Rijeci |
| Subjects: | |
| Online Access: | https://hrcak.srce.hr/file/402779 |
| _version_ | 1797206739026706432 |
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| author | Tea Hasić Ana Rački Marinković |
| author_facet | Tea Hasić Ana Rački Marinković |
| author_sort | Tea Hasić |
| collection | DOAJ |
| description | Since few decades ago, the use of traditional insignias on commercial products has been increasing, across the globe. In particular, the use of indigenous insignias on commercial products of non-indigenous origin is often in countries such as USA, Canada, Australia or New Zealand where there are larger indigenous communities. Either as offensive or exploitative the respective practice is unacceptable for indigenous people. Appropriation of traditional insignias by non-indigenous people - i.e. registering indigenous names and symbols as trademarks for commercial products of non-indigenous origin has been considered as particularly unacceptable practice. The aim of the paper is to assess whether the conventional trademark law system contains mechanisms that can combat inappropriate use of traditional insignias. In order to achieve respective goal, international and European sources in the field of trademark law, as well as specific national solutions, are analyzed. Research has revealed that conventional trademark law systems provide
protection against misuse of traditional insignias only in exceptional occasions. Therefore, certain countries, where there are larger indigenous communities and public policies are focused on the prevention of offensive use of indigenous insignias, have introduced minor or larger intervention in their conventional trademark law systems to increase effectiveness when it comes to combating offensive uses of indigenous insignias. It is shown how in New Zealand the concept of cultural offense as an absolute ground for trademark refusal is introduced while in Canada official insignia as a special type of trademark is introduced. The impact of those interventions is considered and whether these could be relevant for the European union. Similar interventions applicable in the conventional European trademark law for the protection against inappropriate use of European indigenous and traditional
indications are analyzed. |
| first_indexed | 2024-04-24T09:11:48Z |
| format | Article |
| id | doaj.art-a1d0d5a8b4714c4fa1972606edc8b9b7 |
| institution | Directory Open Access Journal |
| issn | 1330-349X 1846-8314 |
| language | deu |
| last_indexed | 2024-04-24T09:11:48Z |
| publishDate | 2022-01-01 |
| publisher | University of Rijeka, Faculty of Law |
| record_format | Article |
| series | Zbornik Pravnog Fakulteta Sveučilišta u Rijeci |
| spelling | doaj.art-a1d0d5a8b4714c4fa1972606edc8b9b72024-04-15T17:44:02ZdeuUniversity of Rijeka, Faculty of LawZbornik Pravnog Fakulteta Sveučilišta u Rijeci1330-349X1846-83142022-01-0143123023010.30925/zpfsr.43.1.11PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS FROM INAPPROPRIATE WITHIN THE FRAMEWORK OF CONVENTIONAL TRADEMARK LAW SYSTEMSTea Hasić0Ana Rački Marinković1Faculty of Economics and Tourism “Dr. Mijo Mirković”, Juraj Dobrila University of Pula, Pula, CroatiaOffice of the Agent of the Republic of Croatia before the European Court of Human Rights, Zagreb, CroatiaSince few decades ago, the use of traditional insignias on commercial products has been increasing, across the globe. In particular, the use of indigenous insignias on commercial products of non-indigenous origin is often in countries such as USA, Canada, Australia or New Zealand where there are larger indigenous communities. Either as offensive or exploitative the respective practice is unacceptable for indigenous people. Appropriation of traditional insignias by non-indigenous people - i.e. registering indigenous names and symbols as trademarks for commercial products of non-indigenous origin has been considered as particularly unacceptable practice. The aim of the paper is to assess whether the conventional trademark law system contains mechanisms that can combat inappropriate use of traditional insignias. In order to achieve respective goal, international and European sources in the field of trademark law, as well as specific national solutions, are analyzed. Research has revealed that conventional trademark law systems provide protection against misuse of traditional insignias only in exceptional occasions. Therefore, certain countries, where there are larger indigenous communities and public policies are focused on the prevention of offensive use of indigenous insignias, have introduced minor or larger intervention in their conventional trademark law systems to increase effectiveness when it comes to combating offensive uses of indigenous insignias. It is shown how in New Zealand the concept of cultural offense as an absolute ground for trademark refusal is introduced while in Canada official insignia as a special type of trademark is introduced. The impact of those interventions is considered and whether these could be relevant for the European union. Similar interventions applicable in the conventional European trademark law for the protection against inappropriate use of European indigenous and traditional indications are analyzed.https://hrcak.srce.hr/file/402779traditional cultural expressionstraditional insigniasindigenous names and symbolstrade marks |
| spellingShingle | Tea Hasić Ana Rački Marinković PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS FROM INAPPROPRIATE WITHIN THE FRAMEWORK OF CONVENTIONAL TRADEMARK LAW SYSTEMS Zbornik Pravnog Fakulteta Sveučilišta u Rijeci traditional cultural expressions traditional insignias indigenous names and symbols trade marks |
| title | PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS FROM INAPPROPRIATE WITHIN THE FRAMEWORK OF CONVENTIONAL TRADEMARK LAW SYSTEMS |
| title_full | PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS FROM INAPPROPRIATE WITHIN THE FRAMEWORK OF CONVENTIONAL TRADEMARK LAW SYSTEMS |
| title_fullStr | PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS FROM INAPPROPRIATE WITHIN THE FRAMEWORK OF CONVENTIONAL TRADEMARK LAW SYSTEMS |
| title_full_unstemmed | PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS FROM INAPPROPRIATE WITHIN THE FRAMEWORK OF CONVENTIONAL TRADEMARK LAW SYSTEMS |
| title_short | PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS FROM INAPPROPRIATE WITHIN THE FRAMEWORK OF CONVENTIONAL TRADEMARK LAW SYSTEMS |
| title_sort | protection of traditional cultural expressions from inappropriate within the framework of conventional trademark law systems |
| topic | traditional cultural expressions traditional insignias indigenous names and symbols trade marks |
| url | https://hrcak.srce.hr/file/402779 |
| work_keys_str_mv | AT teahasic protectionoftraditionalculturalexpressionsfrominappropriatewithintheframeworkofconventionaltrademarklawsystems AT anarackimarinkovic protectionoftraditionalculturalexpressionsfrominappropriatewithintheframeworkofconventionaltrademarklawsystems |