Abstract

In recent years, there has been a growing discourse at the intersection of intellectual property and human rights, including whether or not individual intellectual property rights are, or can be, human rights. In 2007, this debate began to focus on the area of trademarks. That year, the European Court of Human Rights determined that it had jurisdiction over a trademark dispute, by virtue of the property rights provision found in Article 1 of Protocol 1 to the European Convention on Human Rights. This paper seeks to explore the connection between trademarks and human rights. The first part of the article examines the overarching legal framework of the international human rights regime, and the inclusion of intellectual property rights within specific instruments, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and regional human rights treaties. The paper looks beyond the documents themselves and seeks to explore the implementation and interpretation of intellectual property rights vis-à-vis those instruments in a human rights context, concluding that, in contrast to copyrights and patent rights, trademark rights are not the types of rights that are considered to be human rights per se. The third part of this article discusses the possible inclusion of trademark rights within the human rights regime through property rights provisions, such as the European Convention of Human Rights and Fundamental Freedoms. This analysis includes a discussion of the development of the perceived human right to property, as well as an explication of the question: Are trademark rights property rights? While there has historically been resistance to defining trademark rights as a form of property, such recalcitrance has grown out of a misconception of both trademark rights and property rights. The paper concludes that while trademarks are not human rights per se, they can be considered under a human rights framework in so far as they exist as a form of property right, and should be balanced with other rights accordingly, such as the right to culture.

Publication Date

7-1-2009

Journal Title

Trademark Reporter

Document Type

Article

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