Journal Article

Whose trade mark rights? What the <i>Microsoft</i> case means for trade mark owners

Christian Rohnke

in Journal of Intellectual Property Law & Practice

Volume 1, issue 13, pages 861-866
Published in print December 2006 | ISSN: 1747-1532
Published online November 2006 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpl175
Whose trade mark rights? What the Microsoft case means for trade mark owners

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Legal context. The article considers the influence of the commission ruling in the Microsoft case, forcing Microsoft to use its WINDOWS-trade mark for an ‘unbundled’ version of the program in the light of the trade mark owner's properties rights. The scope of these rights is determined by the function of the trade mark and the rights that the trade mark laws confer to the owner in case of infringement.

Key points. Trade marks are protected as property rights under community law. They are the embodiment of past investments and transform the reputation of the owner into a bankable asset. Consumers rely on trade mark owners' control over quality. This is mirrored by the rights of the trade mark owner to stop interference with quality and image, in particular in the context of resale of altered products. Any interference that would be considered a trade mark infringement if committed by a private party should be considered an interference with the protected property right if caused by a government agency. This interference is not justified by the public interest because trade mark rights also embody important public interests.

Practical significance. If the analysis proposed in the article is followed, intellectual property rights have to be given greater weight in shaping antitrust remedies.

Journal Article.  3922 words. 

Subjects: Arbitration ; Intellectual Property Law

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