Trademark protection, public health and international investment law : strains and paradoxes

Abstract

This article aims at exploring the antinomies and paradoxes of trade mark protection in international investment law. The negative impact of trade mark protection on public health seems counterintuitive or even paradoxical. Strong trade mark protection is usually associated with positive effects on consumer protection and, more generally, there is a sort of mystical thinking about trade marks. Brand names are deemed the keystone of a competitive economy, where individuals are encouraged to do the best they can and make their products recognizable to the public, who will determine their eventual success. However, it is a common criticism that in recent years law makers and judges have expanded the rights of trade mark owners too far, at the expense of the common weal. In some cases, trade marks have been used in an aggressive fashion by corporations in order to chill public health regulation. At the international level, this expansion ultimately determines the emergence of antinomies between intellectual property law and other branches of public international law. This article critically assesses international trade mark protection in order to verify whether such a paradox and the consequent systemic antinomies may be resolved. It also puts forward some legal mechanisms which may help policy makers and adjudicators to reconcile trade mark protection and public health in international investment law.