Weckström, Katja --- "Trademark Take-over or Sui Generis Regimes: Absolute Merchandising Rights in Sports" [2012] ELECD 204; in Rosén, Jan (ed), "Individualism and Collectiveness in Intellectual Property Law" (Edward Elgar Publishing, 2012)

Book Title: Individualism and Collectiveness in Intellectual Property Law

Editor(s): Rosén, Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857938978

Section: Chapter 13

Section Title: Trademark Take-over or Sui Generis Regimes: Absolute Merchandising Rights in Sports

Author(s): Weckström, Katja

Number of pages: 46

Extract:

13. Trademark take-over or sui generis
regimes: absolute merchandising
rights in sports
Katja Weckström*

1. INTRODUCTION
In a constitutional state, committed to liberal values, the intervention of the
legislator in the market forces of free competition requires a specific justifica-
tion. Economically speaking, this justification rests on the consideration that,
without any such intervention, a market failure would ensue after a certain
period of time.1

When considering justifications, there are two possibilities. We can con-
sider the justification for each individual right in intellectual property,
i.e., copyright, design, geographical indication or trademark, separately.
Legislatures tend to do so when balancing incentives for intervention
against those for non-intervention.2 Alternatively, we could consider the
market position conferred by IP rights in general in a particular field,
before considering whether market intervention is justified via a particular
form of IP protection.
The latter, i.e., horizontal intellectual property law issues are seldom
considered.3 A natural consequence of this is that horizontal issues related
to the rest of the legal system are also ignored, or considered from only one
perspective; e.g. trademarks are balanced against freedom of expression
concerns. I argue that it is here, when protection crosses over the interface


* Lecturer, LL.D. Candidate University of Turku Faculty of Law. The
author would like to thank John Cross, Graeme Dinwoodie, Shuba Gosh, Annette
Kur for comments on previous drafts of this article.
1 Hilty, Reto M., `The Law Against Unfair Competition and Its Interfaces',

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