IP Scholar Series: Martin Senftleben

00:20 - It’s especially useful to the speaker to present to a sea of faces rather than a sea of names.

00:26 - And it’s good to have you all. Jerry, it’s very good to see you.

00:33 - I think you registered first out of the 100-something people who registered today.

00:38 - So we’re excited to have you. Thank you for coming along so quickly.

00:44 - And we look forward to engaging you in discussion today.

00:48 - I would like to wish everyone from our very Irish area a happy St.

00:54 - Patrick’s week which is the way we celebrate it.

00:56 - I didn’t get to do anything with people on the actual day, so today I am wearing my green jacket that I inherited from my father which says the friendly sons of St.

01:11 - Patrick right on it. So I’m an honorary member of whatever that is.

01:19 - Welcome, everyone. You know, for those of you that are in Europe, I do encourage you in the reception period that will follow our event to break out your pint of Guinness and celebrate the week properly.

01:39 - It is a joy and a privilege to invite back to us today Martin Senftleben.

01:49 - And who has treated us to a book. So he is on his book tour.

01:52 - This is actually the second time we’ve got to hear from him this year.

02:00 - And we’re excited to have him here to celebrate the publication of the Copyright/Trademark Interface.

02:11 - Martin is a professor of intellectual property law and director of the Institute for Information Law at the University of Amsterdam.

02:20 - His activities focus on the reconciliation of private intellectual property rights with competing public interests of social, cultural, or economic nature.

02:34 - He is a member of the Copyright Advisory Committee of the Dutch State.

02:41 - He is the president of the trademark Law Institute perhaps most importantly for us Martin is a founding member of the Global Expert Network on copyright trademark lights which was launched in 2011 to study issues like the one at hand.

03:03 - How to promote and protect the utility of copyright user rights in law and policy including as we’ll discuss here from trademark law.

03:13 - Let me just begin by serving a small number of ground rules that we like to follow before turning to Martin.

03:20 - The first as I mentioned, this is a seminar with everyone in the same room and we encourage you – if you feel comfortable – to leave your cameras on to help us feel part of a single group and to give the audience – to give the speaker an audience.

03:36 - Second, we record all of these events. This is your notice of that.

03:40 - During the public part of the lecture which is the first 90 minutes.

03:49 - So that takes us to about 11:30 Eastern Time.

03:50 - EDT. And we can – and so this is a public record.

03:57 - We keep the archive of all of these videos which you can find from our past lectures.

04:05 - You just follow the events tab. And all of these events are creative comments licensed for reuse incluing in, for instance, classrooms for those of you who are teachers.

04:16 - Feel free to use them in your materials. I want to encourage everyone to feel very free to use the chat function including during the speaker’s talk.

04:30 - Primarily to communicate to others, but to prevent the speaker from being distracted, we tell Martin to not follow the chat.

04:40 - So if you have a particular direct question for Martin, then please raise it during the discussion session.

04:49 - I will follow the chat and try to include questions and themes being discussed there into our conversation.

04:55 - But if you have a direct question for Martin himself, we will have a discussion period where you can raise that at the end.

05:03 - So Martin will speak for roughly 30 minutes but we don’t have a tight time limit and we won’t cut him off.

05:10 - And the rest of our time will be in open discussion.

05:16 - Our own Christine Farley who leads our trademark program will begin that discussion, and then everyone else is very much encouraged to join in with comments and questions.

05:29 - We’ll keep a queue by using the raise hand function which you can find down at the bottom of the screen.

05:35 - It’s now located in the reactions button at the bottom of Zoom.

05:41 - L – so that location has shifted a little bit.

05:44 - So after about 90 minutes from our start, so that would be at 11:30 eastern daylight time, we’ll close the formal meeting, turn off the camera, but we’ll keep this room open in an informal discussion for the next 30 minutes.

06:00 - So that part of the discussion we operate under Chatham House Rule which means none of the comments or the questions in that session may be attributed to any speaker.

06:10 - And we do that in part because for some participants, this is a more welcoming rule for discussion.

06:19 - But we also very much welcome informal chatting with colleagues.

06:23 - So feel free to bring on your pets and your babies and show us what you have.

06:28 - So if you have any other particular questions for me about the operation of this event, feel free to direct message me in the chat function.

06:40 - And with that, Martin you are very, very welcome.

06:43 - Congratulations on the fantastic book and please tell us more about it.

06:47 - So the – you should be able to share your screen if you like.

06:51 - And so we’re over to you now. Thank you for coming.

06:56 - >> MARTIN SENFTLEBEN: Yeah, well, thank you so much for the kind introduction and the congrats, Sean.

07:04 - It’s great to see so many colleagues and friends joining this book talk.

07:09 - Actually, for me personally, of course, it’s one of my favorite topics at the moment.

07:14 - But it’s also a bit of a challenge, because – so this is the book.

07:18 - And you see it’s – yeah. It’s really – I mean, if you don’t want to read all of it, you can use it as a yoga block or something.

07:28 - It’s quite a lengthy story, I must say. But during the book launch last week, one said it’s an academic page turner.

07:37 - So it seems that it’s quite a good read. So what I want to say is – I try to cut a long story short for you.

07:47 - So I will try to keep within the 30 minutes which Sean suggested as an ideal time frame for sharing a bit of information about the book.

07:57 - And in fact, yes, I have prepared a couple of PowerPoints for that purpose.

08:03 - So I hope you can all see this. Try again.

08:17 - Just go back a bit. Sorry for that.

08:27 - So this should be the first sheet of the presentation.

08:32 - So the book has been published in the law series.

08:34 - Here is the book. And what I want to take as a starting point for today’s discussion is actually what is also the starting point of the discussion in the book.

08:46 - And that’s you could say a functional approach to copyright law.

08:50 - As I see it and I describe it in the book, copyright law is a cyclic innovation system.

08:58 - So the grand copyright protection for the author who is able to create a literary and artistic work, but we know when there have been lots of studies that this is not just a new work in the sense of not based on pre-existing materials.

09:14 - So basically the author is somebody who uses the public domain of cultural expression and source material as a basis to stand on the shoulders of giants and create a new work.

09:27 - And then for this achievement, the grand copyright protection.

09:30 - But it is only for a limited period of time.

09:34 - And then after this, the copyrighted work itself enriches the public domain.

09:40 - So we want to see what we could say, what we could call cyclic cultural innovation, the work of the first author serving as a basis for second authors for derivative works.

09:53 - And we have quite important features to enable this cyclic innovation process and copyright law.

10:00 - I have mentioned the limited term of protection already.

10:03 - It’s quite a long-term, but it’s a limited term.

10:10 - So there comes an end to protection. But during the time of protection, we learn it’s possible by examining certain forms of transformative views.

10:21 - You have the fair use doctrine in the U. S. In European context, we have more specific limitations for these purposes.

10:28 - And then it’s about quotations, parodies, so types of users where pre-existing material is transformed and presented in a new context and in a new setting.

10:39 - So that’s basically what copyright law is about, you could say.

10:45 - And that’s also a major concern in the copyright debate.

10:49 - We have seen that in the past, concerns about this copyright balance, about this ongoing process have often led to heated debates.

11:01 - So in the WIPO internet treaties where we new protection elements in copyright.

11:05 - We got the protection of technological measures, protection of rights management information.

11:10 - It was said that very often now we are exposed to technology basically framing and reshaping the copyright balance.

11:18 - Then when combining this with the impact of contracts and there we had the discussion on slink-wrap licenses and click-wrap licenses.

11:30 - Then you leave it to private market parties to shape the balance and perhaps artificially extend the term of protection.

11:43 - Or basically abolish the practical use of exceptions and limitations.

11:48 - So this is something that we have all observed and that we have discussed extensively in copyright law.

11:55 - But there is a development that took place in parallel.

12:00 - And this from my perspective has been largely overlooks.

12:05 - And this is developments in trademark law and practice.

12:10 - Perhaps this is because we have a bit of a hyperspecialization in intellectual property laws.

12:19 - And you may overlook developments in other areas of intellectual property.

12:25 - So there’s a bit of trademark law and practice as a bit of a submarine development that took place in parallel.

12:35 - And then if I want to describe this, then it’s basically a development where more and more contemprary creations do not only enjoy copyright protection but also trademark protection on top of it.

12:54 - It has become a standard protection strategy for character merchandising and so on to ask not only for that but to register cultural productions as trademarks.

13:07 - And we have more than enough examples of this in the area of fictional characters.

13:14 - Of course Mickey Mouse is not only a famous fictional character, but a trademark.

13:22 - Donald Duck is also there. The U. S.

13:25 - superheroes are on the trademark register. Spider-Man, Superman.

13:34 - The Peanuts are on the trademark register. We have Gargamel and the Smurfs.

13:42 - There are more historic examples of this. The Tale Of Peter Rabbit.

13:50 - And of course on the other side of the Atlantic in Europe, it’s not different in any way.

14:02 - Lucky Luke and the Daltons. I could continue like this.

14:05 - Just one final example. I don’t know about the market share of Miffy in the U. S.

14:17 - But Miffy is a very famous fictional character in the small little country where I am based.

14:23 - So that’s the fictional characters. More recently we also see more and more cases coming up that concern what we would call the classical artworks.

14:38 - So The Scream is registered as a trademark.

14:44 - We have registrations of the milkmaid. Colleagues from France have told me that actually Nestle managed to really establish this as a well-known trademark in France for dairy products.

14:58 - So here you see the milkmaid in a commercial context.

15:07 - On the EU trademark register, we have the knight registered for selling the chemical element stronsium.

15:19 - In order to find out whether a trademark registration would be possible.

15:27 - And when you look into related indications, book titles and so on, you find even more on the trademark registers.

15:35 - So here you have the original Dutch titles of Anne Frank’s famous writings.

15:46 - They are registered at EU level trademarks.

15:49 - Here you have several other European Union trademarks.

16:00 - And it’s names like Vincent van Gogh, Mona Lisa, they are all on the trademark register.

16:06 - And of course the fictional names are also on the trademark register.

16:11 - Whether it’s Darth Vader or Harry Potter or Pocahontas, Sherlock Holmes, Snow White and so on.

16:23 - It’s a mass phenomenon to have trademark registrations relating to cultural productions.

16:30 - There are also statements in the artistic community that point out that this has become a well-established avenue for protection.

16:45 - So here we have a famous Banksy graffiti. I believe this is in Barcelona.

16:51 - And Banksy, himself, or she. We don’t know.

16:54 - He said well copyright is for losers. I mean, that’s perhaps a very personal statement if you are a graffiti artist and you are anonymous and perhaps what you do strictly speaking is illegal because it’s other people’s property that you are using for your art.

17:12 - Then copyright is perhaps just not available.

17:15 - So you have to basically rely on something else.

17:26 - But we see this intersection has become a standard thing.

17:29 - It’s all over the place. And the book basically asks the question, are we doing the right thing? Is it really as relaxed as we always thought it would be? So the problem statement basically is that I’m really afraid that we are driving out the sources of future creativity.

17:54 - I think we are living in an age that is as greedy as no age before us.

18:01 - We have always ensured that literary works enter the public domain.

18:06 - Now we have reached a stage where it’s become a phenomenon to keep at least trademark rights.

18:12 - So these works, these references to cultural works do not fall into the public domain completely.

18:22 - I know that this point of view can be particularly difficult to sell to U. S.

18:25 - audiences. So this is why I was particularly happy also to have this opportunity to speak about this in a U. S.

18:35 - context. So from U. S. colleagues, I regularly hear what’s wrong with a culture/commerce amalgam? What are you afraid about it all? During the book launch, Martin Bebe mentioned the example of United Airlines using the rap – rhapsody.

19:07 - There has been barely any cultural production in the U. S.

19:11 - which at the same time is being developed as a commercial product or at least something that has commercial value at all.

19:21 - So advertising where the rhapsody in blue is performed in an aircraft.

19:25 - So what’s wrong? My answer to that is, well, perhaps you have become used to this amalgam of culture and commerce.

19:38 - But still from the perspective of how these protection systems are supposed to function, it is really wrong.

19:46 - So once again, my starting point is to say copyright law is a cyclic innovation system.

19:51 - The author takes something from the public domain, creates a new work, enjoys protection for a limited period of time and then the work becomes completely free for follower innovation.

20:02 - Trademark law is really the opposite of this.

20:09 - So trademark law is about taking a distinctive sign out of the public domain but then you keep that sign.

20:15 - You keep it as long as you use it in trade.

20:22 - So this would be my graphic kal representation of how trademark law is con fig rated.

20:31 - There’s noal representation of how trademark law is con fig rated.

20:36 - There’s no – so the clash is very obvious.

20:41 - This is what we get when we allow conglomerates of copyright and trademark protection.

20:48 - And interestingly, what trademark law adds to your portfolio is exactly what copyright law wants to remain free.

21:00 - If you get trademark protection on top of copyright protection, firsts of all, you get a term of protection that is indefinitely renewable.

21:12 - And I have said before the limited protection of copyright law as long as it might be, but the limitation that is put on the term of protection serves the purpose of finally freeing these works and making them available for further literary and artistic creativity.

21:31 - And then it’s the same you can say about the exceptions and limitations.

21:38 - So if we agree in copyright law provisions like an exemption of parody, quotation is important because it serves the purpose of allowing following on innovation.

21:50 - Then trademark protection on top of copyright can be a way of eroding these copyright use privileges.

22:03 - So here you have a Miffy parody. As I said earlier, the Dutch name of Miffy is nijn.

22:12 - This is the word play that was made here. It is the naive children’s world and type of painting which the painter of Miffy is using himself.

22:26 - But then it’s just nijn-eleven. Then you see here as a terrorist, a dark black parody you could say.

22:34 - And this terrorist parody had to fight a war onto France.

22:36 - This was also a trademark case. I’m not saying that the courts are getting this wrong all the time.

22:45 - In fact, finally said this is a permissible use.

22:49 - But they had two hurdles, two upcycles which the parodyist had to look at here.

23:01 - In this famous case, this was an attempt by the city of Oslo to register no less than 100 artworks of the famous Norwegian sculptor Gustaf Vigeland as trademark.

23:19 - The highest court of the countries belonging to the European Free Trades Area.

23:25 - Said this is commercial greed. Out of commercial greed, a public body wants to register all these artworks in order to monopolize them for the purposes of city branding in this case.

23:37 - So a very strong statement against this practice.

23:44 - So there is more to say about this from a theoretical perspective.

23:50 - The problem statement, I would say, is that our understanding of what trademark law does is incomplete.

24:00 - We don’t understand clearly enough – and perhaps the book contributes to a better understanding of this.

24:08 - That trademark law is not only about market transparency and about protecting consumers against confusion.

24:13 - This is the standard story that is told. We need trademark protection in order to protect consumers against confusion.

24:21 - And of course this is something nobody can be against protecting consumers against confusion.

24:26 - That’s a very good policy basis, of course.

24:28 - But we must understand that the moment that we allow trademark protection, we also give a certain incentive.

24:39 - The dark side is an encouragement of investment in the transformation of cultural signs into brands.

24:45 - The moment cultural signs can be registered as trademarks, we provide incentives to the industry to invest in these kinds of trademarks.

25:01 - And the risks are an impediment of the cycle.

25:04 - So an artificial extension of protection that can have a deterrent effect.

25:10 - Intentionally or unintentionally the trademark owner will take steps against those users who do not use the trademarked cultural sign in the sense the trademark owner would like to see.

25:31 - So there will be cease and desist letters and being exposed.

25:36 - And if there was no such thing as a trademark, these allegations would be simply unfounded from the very beginning.

25:43 - And there is perhaps an even more fundamental risk here.

25:49 - This is with regard to the source of inspiration.

25:53 - We must also understand that trademark rights give the trademark owner a quite strong definition power.

26:01 - Definition power in the sense of impregnating a cultural sign with certain commercial meanings.

26:07 - And these commercial meanings may interrupt the dialogue in the artistic domain.

26:12 - So let me explain this point in a bit more detail.

26:18 - This point of definition and communication power is, in fact, a crucial one.

26:22 - During the writing process, I have heard several times, yeah, but you know cultural works are used so often in advertising.

26:29 - And perhaps it’s even a good thing that people learn about certain cultural works through commercial communication.

26:38 - Sometimes people get aware of certain cultural production, certain work because of use in advertising.

26:45 - So why are you against this? Well, my answer is it’s not only advertising.

26:53 - The moment we register cultural signs as trademarks, we give the trademark owner a much more powerful position in the whole communication process.

27:05 - The grant of an exclusive right, the trademark right, gives the owner a solid basis for preventing others from speaking.

27:11 - Or threatening others that they will be prevented from speaking.

27:18 - So this is particularly serious because when it comes to cultural innovation, the other party that is exposed to these threats, allegations of infringement are artists.

27:31 - And we know from lots and lots of anecdotal evidence, also empirical studies that they are vulnerable because they are risk averse.

27:42 - It’s been pointed out several times that artists when receiving a cease and desist letter, for instance, are unlikely to stop.

27:50 - So very often an allegation of infringement may already put an end to further use in the domain.

27:58 - So the discourse surrounding a cultural sign is no longer as free as it was before.

28:06 - And then if you like, I can add lots and lots of theory – European-based theory I must admit to make this point a bit stronger.

28:21 - So we have the sociological production in the literary and artistic field conducted by Pierre Bodiour.

28:32 - And he points out that they are not substitutable.

28:34 - At least not for an artist that wants to follow for innovation.

28:39 - As consumers we may not care so much. As consumers, if the Star Wars movie is not available, we watch Guardians of the Galaxy and still have a great evening.

28:55 - So sometimes cultural works are substitutable from that perspective.

28:58 - To the artist, it matters. Whether the Mona Lisa or the Knight Watch is viewable and impregnated with certain commercial meanings.

29:13 - It matters whether a quotation of rhapsody in blue would be understood as a reference to United Airlines in composition or not.

29:23 - This may prevent you as an artist from using this particular work as a reference material from the very beginning.

29:32 - Then of course we have philosophical thoughts in that area.

29:40 - Shiller after the French Revolution had led to a totalitarian system in France wondered how this could have gone wrong.

29:46 - And he said well, the reason why this went wrong was people were not educated.

29:51 - People had not been prepared for the power of action that had arisen.

29:58 - Then he says arts could have made the difference.

30:00 - Art could have educated people, could have shown people visions of a better society.

30:06 - So that the moment the power vacuum rises, people know what to do and how to establish an enlightened state.

30:21 - Similar things were said after the World War after the Holocaust.

30:28 - And we have more in the analysis of contemporary art.

30:38 - I have Peter Osborne’s book. To puncture the horizon of expectation and really show alternative visions of better or social and political circumstances.

30:52 - So what we are doing here by allowing trademark protection for cultural signs is – and also submerging the cultural meaning of these signs is we are also putting at risk the spectrum of alternative visions of society that we have freely available for our discourse.

31:13 - The moment’s rhapsody in blue is a commercial jingle of United Airlines, it loses the power to change social and political conditions.

31:22 - So that’s basically the argument. And I think this is still relevant in a U. S.

31:30 - context. Sometimes I hear U. S. colleagues say, yeah, but you know, after Tam and Brunetti, there is hardly any room not to register these signs.

31:47 - At least not on public morality. I don’t have the last word on this because I am not a U. S.

31:51 - trademark specialist or U. S. trademark scholar.

31:55 - But the focus from my understandingunderstanding in Tam and Brunetti was very much on the trademark applicant.

32:05 - But the court said nothing about the detriment that it may cause to other speakers.

32:10 - And in the case of cultural signs, this detriment is self-evident by granting to a cultural sign you disadvantage, discriminate against the other speakers who do not have this trademark right.

32:30 - So if I convinced you there is a bit of a problem and an issue, if not perhaps you like to listen just out of curiosity.

32:38 - So I can tell you in the last ten minutes a bit about solutions that I develop in the book.

32:45 - I think we can tackle this problem at different levels.

32:50 - At the registration stage, we can have a grounds for refusal like public order and morality in order to exclude registrations from the very beginning.

33:01 - And then at the infringement stage, we can also do quite some – can also take quite some steps to make it easier for artists to survive these allegations of infringement so we can develop a robust gate keeper requirement of use as a trademark.

33:19 - And also robust defenses. So let’s look at these remedies in a bit more detail.

33:33 - Safeguards against registration. Well, there is one traditional answer that we find in many court decisions, office decisions, and that seems to be generally accepted in the trademark arena.

33:48 - As an example, I have here the Mona Lisa decision of the federal court of Germany back in 1997.

33:55 - The court had to deal with an attempt to register the Mona Lisa as a trademark and the court said no.

34:00 - You can’t have this trademark right. First of all, the Mona Lisa is not distinctive.

34:09 - And secondly, the Mona Lisa has become customary in trade practices.

34:13 - It’s used so often in advertising that consumers simply don’t perceive the Mona Lisa as a reference to just one individual commercial source.

34:25 - So the requisite distinctiveness is missing.

34:27 - One reaction to this decision is to say, you see, there’s no problem.

34:29 - They can solve it. Another reaction to this is this is quite sin – cynical.

34:41 - With regard to the Mona Lisa the situation is already so bad, so the Mona Lisa has become so widespread in advertising and commercial communication that we can’t register it as a trademark any longer.

34:57 - When you consider alternative scenarios, then you have Picasso’s painting with ab strong statement against war, civil war in particular.

35:10 - Now let’s say they want to register Guernica for weapons.

35:18 - Or to put it more wildly, registering Guernica for defense technology.

35:20 - It is distinctive. It is not customary.

35:31 - I’m not aware of widespread use of Guernica for any advertising.

35:37 - So I don’t see how a trademark office and court could refuse the registration of Guernica for weapons.

35:52 - I’m originally from the region of Herzen in Germany.

35:56 - There’s one beer producer who has used Solveig’s song for selling beer for years and years.

36:04 - When I hear Licher beer, I think of Solveig’s song.

36:07 - So this is perfectly distinctive. It’s not often used in advertising at least not to my knowledge.

36:18 - Again, I don’t see how these barriers distinctive ness distinctiveness and so on how this is something that could prevent the acquisition of trademark rights.

36:27 - I think the story is a different one. The story is that because these signs are pre-coined.

36:38 - Because they are already viewed as cultural signs, they already have positive connotations in the cultural domain.

36:46 - For that reason, investment in the acquisition of trademark rights through use in trade is very attractive.

36:58 - So I think it is free riding on positive cultural connotations.

37:01 - The moment you manage to establish secondary meaning with regard to a cultural sign, you acquire a very powerful marketing tool that has positive connotations that you get for free.

37:15 - And so I think this whole practice of regulating this and on the basis of distinctive character is just a very doubtful practice.

37:25 - The EFTA Court I think in the decision I mentioned earlier had a better solution.

37:33 - The EFTA Court said loets – let’s refuse this based on public order and morality.

37:45 - We see with these guidelines the Norwegian Intellectual Property Office was able to develop much stronger lines of arguments by saying these sculptures have so much importance to the society they must be kept free.

38:03 - And there’s also a fundamental societal interest in the temporal limitations.

38:10 - So the public domain principle in copyright law as societal value of its own.

38:19 - And they also said what we see here is basically free riding on the reputation of cultural signs.

38:25 - And this is something which we cannot permit.

38:31 - It cannot be that a trademark applicant gets the extra value of positive connotations for free without having invested in the sign himself.

38:40 - So I think that would be one solution in the area of registration with regard to infringement claims.

38:51 - So of course, we have the powerful statement in the Dastar case in the U. S.

39:00 - where the court was saying allowing trademark protection would be allowing a cause of action that would create a species of mutant copyright law that limits the public’s federal right to copy and to use expired copyrights.

39:14 - But in trademark circles, at least this mutant copyrights argument is not so much accepted, I would say.

39:27 - Is this argument valid? You hear time and again that trademark sprex not copyright protection because the infringementprotection not copyright protection because the infringement criteria is different.

39:45 - So the question is, does trademark law really grant a general right in gross comparable to what you get in copyright? And then perhaps in the area of confusion, there is a point – there’s a bit of a point there.

40:04 - So here we have the example of an artist that is painting this Dom Perignon bottle that is a trademark.

40:16 - And then the question is is this confusing at all because quite clearly when you see the artwork, perhaps the link to the Dom Perignon producers is not that obvious.

40:32 - But we have other decisions like in adidas/Marca.

40:40 - The judges leave these issues again to the marketing efforts of brand owners.

40:51 - And Adidas said the public’s perception that the sign is a decoration cannot constitute a restriction on confusion when despite the decorative nature the sign is so similar to the registered trademark that the relevant public is likely to perceive that the goods come from the same undertaking or an economically linked undertaking.

41:11 - So there is the pain in this economically linked undertaking.

41:18 - And you could say confusion as to affiliation and sponsorship.

41:21 - And then, of course, you get all the doubts.

41:24 - Like, has Dom Perignon, Hennessey, have they sponsored this artist? Another case, the German Supreme Court in the Medusa case which was about floor tiles.

41:42 - In that market there was only 5% trademark recognition.

41:45 - So that was not a case with trademark relevance, but if there had been stronger trademark recognition, a higher percentage might have offered the basis for the confusion claim.

42:00 - And then we must not overlook the remarkable development of trademark law.

42:06 - It’s not only about confusion nowadays. We have the dilution claims as well.

42:17 - We recognize brands, trademarked elements of the brands in their own right.

42:22 - And those enjoy protection against damaging the brand value, taking advantage of the brand value.

42:29 - And there are lots of cases about this. You have to – the Barbie Girl case with the band Aqua making fun of the Barbie stereotype which was not only a confusion case, it was a dilution case.

42:48 - This was a case about blurring tarnishment and free riding.

42:50 - So that was the trademark argument here. And also this case, Cedric painting this Dom Perignon bottle had to argue the case based on to defend himself against allegations of blurring, tarnishment, and free riding.

43:11 - So what can we do here? In the book I say we can learn a lot in Europe from the United States because in the United States you saw the evolution of the Rogers test in case law which means a requirement of explicitly misleading or explicitly damaging use.

43:36 - So this is criteria that would make it harder for trademark owners to establish enfringement.

43:45 - We should have an enfringement tested whether they are aimed at misleading consumers.

43:51 - Aiming at damaging the brand. And then and then we have a threshold crteria that is much more effective than the vague remark requirements that we have in EU trademark law at the moment.

44:09 - So no worries, I come to an end. I know that I’m close to the 30, 35 minutes.

44:19 - Let me conclude by saying from my perspective, there’s lots of work to be done.

44:22 - I’m not saying that these cases cannot be solved under existing trademark law.

44:29 - But I’m saying that we should upgrade the checks and balances in trademark law.

44:34 - I think that we could do better. We could establish a better framework in trademark law to prevent these overlapping types of protection or at least counterbalance infringement claims.

44:50 - So instead of the unreliable distinctive test, we should use public order/morality as ground for refusal.

45:01 - We should have an extended version of the Rogers test that does not only apply to confusion cases but also to dilution cases.

45:11 - And then a final word on the limitation infrastructure.

45:14 - I mentioned limitations like parody, quotation, and so on.

45:17 - In copyright law that are very important to artistic processes of creation.

45:24 - Unfortunately, we do not have exactly the same exceptions and limitations in trademark law.

45:34 - So we should move from an incongruent copyright/trademark infrastructure to a congruent copyright/trademark infrastructure.

45:42 - We can either declare the copyright applicable also in trademark law.

45:45 - Or perhaps use other solutions. But just to give you an example howdy verse – how diverse this is.

45:55 - We have a view in the early of copyright, no general fair use provision.

46:01 - Specific defenses for quotation and parody.

46:06 - Come – compliance with the three-step test.

46:09 - And the burden of proof is on the artist. In trademark law, we have the due cause defense which is fair use but only covers dilution cases.

46:18 - Then we have specific defenses but no such thing as quotation and parody.

46:30 - We would have to rely on reference use. And then compliance with commercial matters.

46:36 - Tell me how artists should know about honest practices in industrial and commercial matters.

46:40 - They are not in that domain. And of course as a general problem, the burden of proof in all these cases is on the defendant.

46:49 - So I think there’s really lots and lots of work to be done here.

46:58 - How the book can contribute to getting this process going or at least having a good discussion about what we could do in trademark law to prevent the corrosive effect that I fear will be flowing from copyright/trademark overlaps.

47:20 - So that’s what I wanted to share as a starting point for the discussion.

47:21 - Thanks so much. >> SEAN FLYNN: Thank you, Martin.

47:30 - Thank you so much. That was a wonderful lecture.

47:33 - Summary of a wonderful book. Let me turn it first over to Christine.

47:42 - But then we invite others to join the queue.

47:46 - Jerry, I’m hoping you might join the queue with us.

47:52 - I also know Patricia is here. Who’s writing her dissertation on copyright interface.

47:57 - But let me start with Christine. If you want to get into the queue, please raise your hand using the raise hand function in the reactions button down below.

48:09 - Go ahead, Christieristine. >> CHRISTINE FARLEY: Thank you for this wonderful book, Martin, and thank you for coming to join us to share it.

48:17 - That was an amazing task to reduce your book to 30, 35 minutes.

48:20 - So very well done. You know, it is just my favorite topic.

48:29 - I mean, every topic and subtopic in the book is just thrillingly interesting to me.

48:35 - So I’m really happy about this book. I’ve only had a chance to get through almost the first half.

48:43 - So I’m really happy to have the chance to finish it.

48:48 - And I’m very happy to hear from your remarks about a continuing project there.

48:52 - I want to really encourage you to do that. Speaking as a – coming from the trademark side here and I recognize that much of the audience is more obsessed with copyright than trademark, I’m always happy to highlight for copyright books all the interesting stuff happening in trademark law and all the important work that has to be done for all of the reasons that you care about copyright policy.

49:25 - And I think this book is such an exemplar of making that point.

49:37 - So I have some thoughts and notes I took while reading your book and during your presentation.

49:43 - I hope they’ll have some theme to them, although I fear they’re going to be a bit random, so bear with me.

49:50 - And it’s more or less the thoughts that occurred to me, questions that I have so one thought question I have is what’s fueling this as you say phenomenon? You know, is it just, you know, more ability for seeking that’s driving it? Is it a way to get around copyright duration? Then I thought about two other possibilities.

50:28 - One is that I really appreciate the way you talk about trademark policy and the theories behind trademark protection.

50:38 - And so another possibility is that copyright owners may view trademark law as a good vehicle for them to secure the work with a stable leaning over time to kind of put greater control on the meaning in the way that trademark tries to do.

51:00 - Also greater control on ownership as trademark tries to do.

51:08 - And I think that could be an important implication for future thought.

51:14 - And another idea is that what fuels this is just the change – dramatic change in trademark law as well as the dramatic change in the interface.

51:30 - When we look at some of the old cases – so a great case for this in the U. S.

51:40 - is the 1879 Supreme Court Trademark Cases where the Supreme Court invalidated our first federal trademark act as not being constitutional.

51:48 - That case gave the court an opportunity to define what is the subject matter of copyright.

51:54 - What is the subject matter of trademark. And I encourage you to look at that opinion because the two could not be more different.

52:00 - If you read that opinion, you would think there would never be an interface problem; right? There’s no overlap.

52:07 - They don’t even come close to one another. And that has really changed over time.

52:12 - So I think that fuels this to a great extent.

52:18 - So another – let me see. Where do my notes go from here? Sorry.

52:23 - Bear with me one minute. Well, I know what I want to say.

52:33 - I’m very interested in the implications of all of this.

52:39 - And you raise for me a big, important question which is why we have to rely so much on channeling doctrines.

52:46 - You know, why is there so much work, so much work needs to be done policywise and especially dichotomy, functionality doctrines, those kinds of things.

52:58 - And why don’t we have instead a – you know – choose your protection system.

53:03 - You get one bite of the apple, you don’t get several.

53:04 - Right? So I am imagining like a forfeiture doctrine.

53:14 - Having chosen copyright, you forfeit your ability to get a second type of protection.

53:18 - However, if you’ve chosen copyright and you failed, you were denied a copyright, go ahead and try another system.

53:34 - But why is it we permit these overlapping rights? As these doctrines developed, there wasn’t one that exists today.

53:48 - The question to you is do we want to restrict ourselves to advocating for kind of more pressure on what you mentioned and on these channeling doctrines? Or wouldn’t it be an interesting project to kind of push for a forfeiture doctrine.

54:08 - You have forfeited your ability to look elsewhere for rights.

54:11 - Okay. And I want to just emphasize in relationship to that point that in trademark law, when trademark is the second set of rights that you secure, either because – either after you have secured copyright or secured a patent.

54:32 - Because of the doctrine of distinctiveness, one of the reasons you get a trademark right is because of the fact that you’ve already enjoyed exclusionary rights.

54:44 - It is the fact of these overlapping rights that that is your basis for establishing trademark rights.

54:51 - And that to me seems just fundamentally wrong.

54:59 - Now, when you talk about your solutions and having some of these doctrine do more – you mentioned the Rogers doctrine which has a lot of pushback in the United States.

55:25 - But fair use needs to grow and be stronger for sure.

55:29 - But it doesn’t have to model itself on copyright fair use.

55:33 - There may be a very different way to think about trademark fair use.

55:36 - And I think this is work to be done because it hasn’t been thought through very carefully especially by scholars.

55:45 - For instance, there’s no reason to prevent someone from making a satire of a trademark work.

55:50 - Right? If we allow trademark fair use because they are the way we communicate, then we have to communicate satirically through trademarks.

56:07 - So I think that they don’t need to develop along the same lines.

56:11 - And in the way that trademark fair use can be more robust, it needs to think outside the box.

56:19 - Another doctrine which I think could be analyzed here is trademark abandonment.

56:28 - You know, trademark abandonment is hard. It’s a very high hurdle.

56:33 - It has become a steeper hurdle over the years.

56:43 - And this overlap, I think, contributes to our inability to find in trademarks.

56:49 - And it is the only way we have any end of rights in trademark law.

56:56 - So I think that would – I would point out that doctrine as one that would need to be looked at.

57:04 - You mentioned the chilling effects and I think it would be very interesting to see whether people receiving cease and desist letters are chilled more.

57:16 - We also have a trademark in this. I wonder whether those cease and desist letters, we don’t know how people are reacting to it.

57:31 - But I wonder whether the prospect of determining damages in yet another way under another legal regime also contributes to chilling effects.

57:46 - And then two more ideas, questions for further work is, in terms of a copyright/trademark interface, it seems like a lot of the thought you put into this book is really focused on copyright.

58:03 - But I’m interested in flipping that and looking the other way around.

58:10 - You know, you mentioned – I think chapter four is a fantastic chapter in which you’re thinking about trademark theory and how it relates to copyright theory.

58:20 - And it all sounds good; right? It’s about transparency, stability in the marketplace.

58:29 - Except it really isn’t about any of that; right? I think more work needs to be done scrutinizing what trademark is doing.

58:43 - And I think your work here helps to underline that.

58:52 - And so there could be also positive implications for shed ing light on that phenomenon.

59:02 - I’ll leave it there for others to jump in.

59:04 - >> MARTIN SENFTLEBEN: Well, Christine, thank you so much.

59:09 - I mean, I must say, first of all, I’m so grateful.

59:12 - Because it shows once again that this book and this is how it was – what it was meant to do is the starting point of a conversation.

59:22 - It’s not the end of a conversation. It’s highlighting I hope a couple of issues that have been in the background for too long.

59:30 - So if you really get more focus on these issues.

59:34 - I mean, basically what you explain is a whole workshop if not a whole conference.

59:43 - Let me just make a couple of brief comments in reaction to what you just said.

59:48 - First of all, this whole thing about, you know, these fields of protections are very very different purposes and also protection under copyright law.

60:00 - As well as protection as a trademark is only protection of Mickey Mouse as an identifier of commercial source.

60:08 - I think this is a story that is still very often to be heard.

60:15 - Also in court decisions. I don’t believe that story any longer.

60:22 - I believe we have reached an area that this is no longer entirely true.

60:29 - At least not in cases where we have a source identifier.

60:41 - In the book I tried to formulate an answer to this, perhaps we should try and think no longer about policing doctrines where we correct within the legal system after the overlap has taken place.

60:55 - But perhaps we should just think of measures that make it undesirable for rights owners to have an overlap at all.

61:02 - So what I’m saying is we should move from a situation where double protection meets the best of both worlds.

61:13 - So instead you have only the smallest common denominator.

61:16 - I think there should have been obligation of IP owners have been IP protection under different systems to ensure that both systems remain fully operable and can fulfill their societal functions to the fullest.

61:36 - So this means we would diminish the availability that the property owners are no longer.

61:44 - But start focusing on the one system that Fay – they find really important.

61:52 - And with regard to feature, one could be to say in the case of being designed to serve as a trademark but copyright protection accidentally to then say okay you can register this as a trademark, but you also sign a declaration that you will not use the trademark in a cultural context to impede cultural productions.

62:17 - Which would mean you could have the trademark right, but you make a declaration that you don’t use it in a cultural context.

62:25 - Which brings me to the final point flipping the whole thing around.

62:29 - Yeah, it was actually when I started the whole project, I thought I could write a book about all types of protection overlaps.

62:37 - And after 600 pages on this particular overlap, I thought, okay.

62:39 - I stop here. Because this will keep me busy for the rest of my life.

62:45 - If I flip it around and if I say it’s not about the copyright/trademark overlap.

62:54 - Of course copyright erodes the principle of specialty.

62:57 - If you design a logo, you register it as a trademark, and you register it only for, let’s say, selling cars and you have copyright on top.

63:05 - Then this limitation to only cars is gone. And there are lots and lots of other examples where copyright for those creations that are really meant to serve as trademarks does exactly the same horrible horrible things.

63:22 - When you register as a cultural sign as a trademark which then happen to the cultural sign.

63:28 - I fully agree that, yeah, once again. There’s lots and lots of work to be done there.

63:32 - So thanks so much for these comments. >> SEAN FLYNN: So we now can open it up for anyone.

63:43 - I had seen – I think it was David was in the queue for a moment.

63:46 - But I’m not sure he’s still there. But anyone who wants to make a comment or ask a question, you’re most welcome.

63:58 - Jim, I saw you asked a comment in the text that I don’t know if you want to raise explicitly if it’s still on your mind.

64:05 - Then we can take Alex next. Jim, do you want to – >> Yeah, sure.

64:16 - It seems to me listening to the talk that there was a distinction to be made between cultural symbols that were already cultural symbols and pre-existing in the public domain.

64:30 - That somebody then wanted to appropriate for trademark use.

64:39 - As a – opposed to symbols like the Mickey Mouse ears or James Bond where they weren’t previously cultural symbols.

64:52 - And the fact they became cultural symbols were completely apart of the function of the use of the trademark investment incentive.

65:09 - And whether there shouldn’t be a distinction between those kinds of overlaps.

65:15 - And I thought you started to develop such a distinction in your talk and then as I listened to your exchange with Professor Farley, that distinction seemed to go away.

65:29 - >> SEAN FLYNN: Martin, let me take a couple.

65:31 - Alex, do you still want to ask a question? >> Yes.

65:37 - Thank you, Martin. That was a very great presentation.

65:44 - Very, very interesting to follow for me. I should put a disclaimer.

65:48 - I’m an economist, so this is particularly interesting.

65:53 - We released a study. So that’s really interesting.

66:00 - So I’m having a hard time to follow actually legal discussions to some extent, to be honest.

66:07 - As much as I can follow them, maybe just three observations I had.

66:10 - The first one was I’m not sure I’m buying the assumption that everything in the copyright that goes into the copyright system is kind of this full-on innovation, this cyclical aspect.

66:23 - As empirical researcher, I would have the ambition to actually measure how much of the new supplies we’re getting under the copyright system are actually full-on innovations.

66:38 - I like the idea of having a – looking at the system from a dynamic perspective, but I don’t think it would measure an assessment how much it’s really full-on innovation.

66:48 - That’s the first observation. The second one is – the second one is you mentioned free riding at some stage.

67:02 - And I think I could imagine a trademark owner with a trademark that overlaps that actually invested quite a lot of money into building up that copyrighted character as an example.

67:17 - So I’m struggling a bit with saying everyone is free riding; right? Maybe it’s a terminology issue here.

67:26 - And finally the third observation I wanted to make.

67:27 - Oh. No, I don’t recall. If I recall it, I’ll write you a message.

67:36 - Thank you. >> SEAN FLYNN: You can come back into the conversation too.

67:43 - And Jim, Martin is the former solicitor general for the USPTO and is a, you know, a longtime trademark expert especially at the PTO.

67:54 - He was especially on the T side of the PTO.

67:59 - And Alex is at the economics division. And Patricia is from Brazil and she’s actually doing her thesis or maybe has completed it.

68:10 - Sorry if I – on overlapping between copyright and trademark.

68:12 - So Patricia, thank you for joining us and please make a comment or question.

68:18 - >> Thank you, Professor Sean. Yes, I completed two years ago.

68:24 - And Professor Martin, I would like to congratulate you for the excellent work.

68:29 - It was a very great contribution for the research.

68:34 - I would like to state two comments. And it’s a question also.

68:44 - The first one is at least some others that consult in Brazil regarding the work that is famous and is already in public domain.

69:02 - Or some societies. We have a thesis they are in public domain.

69:11 - And not from copyright field or trademark field.

69:12 - It’s in public domain, period. So as in public domain, everybody can use and nobody can prevent it.

69:26 - Because so a lot of them are discussing with members to question when they trademark are accepted.

69:41 - For example that it was a trademark subject in Brazil also.

69:44 - When this happens, okay. He also can use but also can prevent in any kind of way even to argue confusion before the public.

69:59 - And this leads me to – and I would like to know what you think about this statement of others.

70:16 - And this leads to the second question or observation.

70:23 - I think that we should put some pressure on the trademark owners also that have the copyright and trademark rights.

70:38 - And infringement action. A lot of cases they want to do this to circumvent rules of systems.

70:50 - For example, the periods of the copyright, they want to extend the trademark rights.

71:01 - So in my perspective, I think it’s a kind of view of intellectual property right because they use one finality of one right to circumvent the other.

71:20 - Or they use it, for example, a trademark. But use copyright limitations.

71:29 - Do you understand? They use one rights to circumvent the others.

71:34 - So this is an abuse. And infringement actions, I never see but I don’t think that is why not.

71:47 - We can use against also the views of copyright in this case when we can prove these to happen.

72:04 - I hope I was clear. >> SEAN FLYNN: Martin, to you.

72:06 - >> MARTIN SENFTLEBEN: Yeah. Thanks so much.

72:07 - So this was quite something. But I’ve taken notes.

72:14 - So I hope to answer all the questions. So I start with James’ question about the distinction of the cultural heritage that has always been in the public domain or has entered the politic domain in the meantime and contemporary culture creations like the fictional characters.

72:31 - You’re absolutely right. There is a distinction to be drawn there.

72:37 - In the book, I have a chapter that deals with different types of what I would call cultural signs.

72:44 - So there is one category which I call the Mona Lisa scenario.

72:49 - And another is the contemporary culture scenario.

73:01 - From my perspective Mickey Mouse is also a cultural creation.

73:09 - It might have been created as the mainstream work to mass audiences.

73:16 - That doesn’t mean it is a commercial creation for the protections.

73:19 - There my conception is different. Why is it different? Well, because I’m saying the moment that you exploit such a creation on the copyright rules, you are bound to the quid pro quo in copyright law.

73:34 - So you have to leave it to the public domain at some point.

73:41 - We have the copyright protection without paying the price for this.

73:46 - Which to some extent is already an answer to the final points which Patricia made.

73:55 - With regard to this distinction, there’s also a difference to be drawn between the arguments I’m making.

74:03 - For instance, my order moralty arguments are stronger from my perspective when we speak about cultural heritage.

74:17 - In cases like Mickey Mouse it is quite something to say to Disney it’s against public order that you use Mickey Mouse after copyright expiring.

74:27 - What you can say is that the public domain principle in copyright law is there’s fundamental status as a concern of society for cultural flow on navigation.

74:48 - There was just not enough time for explaining these nuances during this book talk today.

74:54 - And with regard to the economic analysis, Alexander, thanks so much.

75:01 - I remember our conversation at WIPO in the good old days before the pandemic.

75:04 - I already had a bit of a preview. First of all, I fully agree there is lots and lots of work to be done here in terms of economic analysis also empirical analysis.

75:24 - What I can say is this thing is understood very broadly in a copyright context.

75:35 - It’s also putting together bits and pieces of pre-existing works.

75:38 - And there has been extensive work in the U. S.

75:41 - also in the EU. Where he shows based on historical analysis how different types of creations have always been used as source material for follow on innovation.

76:04 - Whether it is possible to say different things from an economic perspective, again, I don’t know I’m not an economist myself.

76:19 - For the time being, I’m still convinced this is really a principle in copyright law and is important.

76:25 - With regard to the free riding argument, yeah.

76:29 - It depends on how strong you want to develop this argument.

76:35 - As I see it, once again, the moment you enjoy copyright protection and make use of this protection, you should be bound to pay the price for this.

76:53 - If you don’t pay this price, whether you are the prior copyright owner yourself – I don’t care.

77:00 - Sometimes I hear from people who say don’t you think at least the important author should get a trademark.

77:10 - I say no. Because they are bound by the copyright rules as well.

77:22 - As they enjoy this, they have the fruits of the office labor.

77:24 - I think that should be enough. To try to continue this protection even if it’s in trademark fashion beyond the copyright term.

77:42 - And to Patricia’s comments, I love this about the domain status.

77:46 - I must admit that in that respect, I’m not very radical.

77:51 - I know that there is public domain theory really putting the domain as a monolith like no rights whatsoever.

78:10 - In my book the public domain serves a purpose.

78:18 - So the public domain in my book is something that serves the purpose of fueling the continuous cultivation of the cultural landscape, you could say.

78:37 - At least it allows me to say that we must be very careful in giving individual speakers more communication power than others.

78:53 - I’m not saying advertising issed a bazed a views in trademark.

78:59 - In advertising it does not come with rights.

79:03 - So still able to take over control and claim back definition power about these cultural.

79:08 - The moment is trademark right a granted, it’s a different story.

79:11 - Because you have one individual trademark owner with more definition power because of an exclusive right to prohibit others from use.

79:30 - From a risk assessment, I’m not sure whether this works so well.

79:39 - Because it’s quite complicated to bring this up in court.

79:43 - This is why I prefer solutions that make it possible for the trademark owner to establish an infringement claim in the first place.

79:51 - So I would prefer solutions for the trademark owner in this case does not even manage to convincingly establish infringement.

79:59 - Because then even if the defendant, the artist does nothing the judge would say you don’t accomplish trademark harm.

80:12 - So I dismiss the case even if the defendant the artist does not react in any way.

80:26 - That’s why I’m a bit hesitant. I’m just not so sure about the practical value in the sense of which using the chilling effect in practice.

80:37 - But again, thank you so much for all comments.

80:39 - >> Thank you so much. It’s a great amount of knowledge for us.

80:46 - >> SEAN FLYNN: Peter, I’m going to go over to you.

80:48 - And this might be our last question in the formal session.

80:51 - And then we’ll wrap up. But then as I mentioned, we’ll turn off the camera, just the recording camera.

80:59 - But you can leave your cameras on and go into informal session after this.

81:02 - But Peter, to you. >> Thank you so much, Sean.

81:06 - And thank you, Martin. It was a wonderful presentation about a project I think is of really urgent importance.

81:20 - And the book which I’ve just begun and am loving should I think stimulate a great deal of discussion.

81:26 - I want to start with an apology which is I’m going to say something and then I’m going to have to leave.

81:31 - And I may not even get a chance to hear your response.

81:36 - But I did want to add it to the discourse buzz there’s been some discussion already about whether one can really document or observe chilling effects on creativity as a result of the growing – what I would describe almost to borrow a term the trademark thicket.

82:09 - And what I can offer from the work that I do and have done over 15 years or so with film makers, mainly documentary film makers is these effects are really, really profound and powerful.

82:24 - One can see them sometimes physically or visually manifested in movies.

82:31 - Whenever you see a logo on someone’s hat dissolving into pixelation or a T-shirt strangely obscured so it – so the original image doesn’t appear, that means somewhere someone in that process has said, oh, well, you’re running too much risk if you actually show someone’s trademark even though you’re showing it in a context of a film that is designed to depict reality, that is designed to convey a natural and authentic view of a setting in which trademarks appear normally as they do as part of our man-made visual landscape everywhere.

83:33 - And so if the question is do – I don’t know if this is a relevant example of overlap or not.

83:38 - But I do know that it helps to speak to the question of whether people are intimidated by concerns about trademark infringement.

83:47 - The answer based on, you know, a limited by growing sample of film makers that I can cite is absolutely.

83:57 - In some ways they are more terrified by trademarks than copyrights.

84:02 - Because at least where copyrights are concerned, they have some sort of mental map of the doctrine.

84:15 - Where trademarks are concerned, they begin at a much more primitive level in terms of that.

84:26 - So yes, there is a problem. Whether this example fits your thesis or not, I’m unsure, but it’s really good evidence of the fact they work deleterious because of concerns about incidental trademark infringement.

84:50 - With that, I’ve got to go. I’m terribly sorry.

84:53 - We’ll talk, but it’s a wonderful, wonderful project.

84:54 - Thank you for it. >> SEAN FLYNN: Martin, I’ll invite you to give a short response and then we’ll close the formal session and Martin will pick you up in the informal session.

85:11 - Go ahead, Martin. >> MARTIN SENFTLEBEN: The partying in the informal online session.

85:19 - We’ll all open our bottles of champagne. >> SEAN FLYNN: Only on your end.

85:31 - It’s still morning here. >> MARTIN SENFTLEBEN: I can be brief on that one.

85:35 - The project as I’ve conducted it is, of course, predominantly a legal doctrine project where I looked into a bit of allture theory, sociological.

85:54 - I relied on the growing and I think also already quite robust literature and also studies that show there is this risk and the more you speak with the society, the more you normally get.

86:18 - So I have a chance to speak at cultural events and they also confirm they are really afraid very much of allegations of trademark infringement.

86:29 - Trademark owners also seem to be known for quite an aggressive enforcement trat – strategy.

86:37 - But to be honest, much of it is anecdotal evidence.

86:44 - So I mean, if we ever really imagine to have a broad empirical study also about the cease and desist question to which direction this directly puts an end to cultural productions and so on, this would be a very, very valuable basis for further research.

87:03 - And a very important confirmation that the concerns that we have seen and discussed for so long are true concerns.

87:08 - And are broadly shared. So I fully agree that this like many other things would be a wonderful starting point for further research.

87:17 - Absolutely. >> SEAN FLYNN: I can see the Dutch like the Germans watch their clock closely.

87:28 - You’ve left me exactly a minute to do my quick closing and turn off the camera on time.

87:32 - So thank you. We’ve reached the end of our formal session for this presentation.

87:38 - And so I want to extend a hearty and full thank you to Martin for the presentation of his tone to us.

87:46 - And for all of you for joining the conversation.

87:48 - You can find the recording of this and all of our other public events this year on the event page.

87:58 - I mentioned those videos are open license for education or any other purpose.

88:00 - And so you’re welcome. .