Barriers for the Strategy of Public Domain Works Protection Based on Trade Mark Registration in the Light of EU Case Law

Abstract

Since the term of economic copyright protection is limited and trade mark right can be extended indefinitely, there may be a desire to artificially extend copyright protection by means of trade mark rights. The main goal of the article is to assess whether this idea is feasible. Although there is a different function and scope of copyright and trade mark right, the possibility of copyright “prolongation” cannot be excluded a priori. It seems that mainly the original purpose of the work as such and the manner of its exploitation during the term of copyright protection are of crucial importance for the possibility of “extending” copyright protection by means of a trade mark registration after the expiration of copyright protection. However, it should be borne in mind that there are some obstacles for the trade mark registration or grounds for its invalidation resulting from the European Union Trade Mark Regulation 2017/100, that are especially difficult to overcome in the case of public domain artwork depicted in a trade mark, i.e., lack of distinctiveness, application in bad faith, inconsistency with public policy or accepted principles of morality.