Monopolising Names? : The Protection of Geographical Indications in the European Community

Marketing of goods under geographical names has always been common. Aims to prevent abuse have given rise to separate forms of legal protection for geographical indications (GIs) both nationally and internationally. The European Community (EC) has also gradually enacted its own legal regime to protect geographical indications. The legal protection of GIs has traditionally been based on the idea that geographical origin endows a product exclusive qualities and characteristics. In today s world we are able to replicate almost any prod-uct anywhere, including its qualities and characteristics. One would think that this would preclude protec-tion from most geographical names, yet the number of geographical indications seems to be rising. GIs are no longer what they used to be. In the EC it is no longer required that a product is endowed exclusive characteristics by its geographical origin as long as consumers associate the product with a certain geo-graphical origin. This departure from the traditional protection of GIs is based on the premise that a geographical name extends beyond and exists apart from the product and therefore deserves protection itself. The thesis tries to clearly articulate the underlying reasons, justifications, principles and policies behind the protection of GIs in the EC and then scrutinise the scope and shape of the GI system in the light of its own justifications. The essential questions it attempts to aswer are (1) What is the basis and criteria for granting GI rights? (2) What is the scope of protection afforded to GIs? and (3) Are these both justified in the light of the functions and policies underlying granting and protecting of GIs? Despite the differences, the actual functions of GIs are in many ways identical to those of trade marks. Geographical indications have a limited role as source and quality indicators in allowing consumers to make informed and efficient choices in the market place. In the EC this role is undermined by allowing able room and discretion for uses that are arbitrary. Nevertheless, generic GIs are unable to play this role. The traditional basis for justifying legal protection seems implausible in most case. Qualities and charac-teristics are more likely to be related to transportable skill and manufacturing methods than the actual geographical location of production. Geographical indications are also incapable of protecting culture from market-induced changes. Protection against genericness, against any misuse, imitation and evocation as well as against exploiting the reputation of a GI seem to be there to protect the GI itself. Expanding or strengthening the already existing GI protection or using it to protect generic GIs cannot be justified with arguments on terroir or culture. The conclusion of the writer is that GIs themselves merit protection only in extremely rare cases and usually only the source and origin function of GIs should be protected. The approach should not be any different from one taken in trade mark law. GI protection should not be used as a means to mo-nopolise names. At the end of the day, the scope of GI protection is nevertheless a policy issue.

Lojalitet i licensavtal

Loyalty in Licensing Agreements The purpose of the dissertation is to analyse the impact of the principle of loyalty on licensing agreements from the viewpoint of Finnish law using the traditional legal method (Rechtsdogmatik) combined with empirical data in the form of licensing agreements. The need for good licensing agreements is crucial. One should avoid mechanical and stereotyped agreements in favour of more conscious and goal-oriented ones. When the parties' will and goals have been made clear, the drafting technique should be chosen accordingly. The importance of the principle of loyalty in the interpretation of licensing agreements varies according to their degree of relationality. This is a concept originating in the relational contract theory, more precisely Ian Macneil's spectrum of contracts, where contracts can be placed on an axis according to their degree of relationality. In the dissertation different factors are used to conclude whether the licensing agreement at hand is to be placed on the axis closer to the transactional pole or closer to the relational pole. A conclusion of the dissertation is that few licensing agreements can be placed so close to the transactional pole, that the principle of loyalty lacks importance altogether. The impact of the principle of loyalty the main focus of which is on fostering the contracting parties to behave in accordance with best practices, not for example on altering contract terms is analysed in different situations where the parties' interests typically collide. These situations are discussed from the point of view of three patent and knowhow licensing agreements that differ as to their degree of relationality. A balance needs to be struck between freedom of contract and relational needs. Especially when interpreting more modern licensing agreements, one should not focus on the written document alone, as is often recommended in the literature on Nordic intellectual property law. Neither is the principle of caveat emptor a proper starting point. Moreover, where the parties are of equal bargaining power, one should not assume that the grants in licensing agreements are to be interpreted narrowly. Focus in the interpretation should instead be on the entirety of the circumstances.