非传统知识产权的保护

By Eleonora Rosati: When we think of the different intellectual property (IP) rights and what each of them protects, we usually refer to – for example – words and logos for trade marks, books and art for copyright, a piece of furniture or a fashion creation for design rights, a pharmaceutical drug or a machine for patents.Yet, IP can also protect ‘things’ or ‘objects’ that may be perceived as being less conventional than those above.When we speak about the IP protection available, for example, for sounds, or colours and patterns, shapes, tattoos, memes and GIFs, or tastes and smells, we refer to ‘non-traditional’ or ‘unconventional’ IP. But how easy is it to protect these ‘objects’, in particular as trade marks?

斯德哥尔摩大学知识产权法正教授、知识产权与市场法研究所 (IFIM) 主任和欧洲知识产权法法学硕士联合主任埃莱奥诺拉·罗萨蒂 (Eleonora Rosati)说过：

当我们考虑不同的知识产权 (IP) 权利以及它们各自保护的内容时，我们通常会指的是：例如商标-文字和标志、版权-书籍和艺术、专利-一件家具或设计的时尚创作，一种药物或机器。

然而，知识产权还可以保护那些可能被认为非常规的“事物”或“对象”。

当我们谈论可用的知识产权保护时，例如，对于声音、颜色和图案、形状、纹身、表情包和 GIF 或味道和气味，这里我们指的是“非传统”或“非常规”的知识产权。 但是，保护这些“物品”，尤其是作为商标的“物品”究竟有多容易？

Starting with sounds, those that can be represented through musical notation, like a jingle, can be protected in principle under trade mark and copyright law. But how about those sounds that cannot be represented through musical notation, take for example “the acoustic rendition of the belling of a stag” or “the yell of the fictional character TARZAN”? While copyright seems unavailable to them, trade mark protection requires determining whether such sounds act as indicators of commercial origin, that is – in technical terms – whether they display the required distinctiveness.

从声音开始，那些可以通过音乐符号表示的声音，如叮当声，原则上可以受到商标和版权法的保护。但是那些无法通过乐谱表示的声音呢，例如“鹿鸣的声音”或“虚构人物泰山的叫喊声”？虽然他们似乎无法获得版权，但商标保护要求确定此类声音是否可以作为商业来源的指标，即——从技术角度而言—它们是否显示出所需的独特性。

Colours and patterns, for instance the colours of a well-known football club or the pattern used by an iconic fashion house, can be also protected – among other things – as trade marks. Today, the representation requirements of colour and pattern marks have been clarified by the case law and by the EU trade mark reform.Like shapes (for example the shape of the bottle of a soft drink or the shape of the packaging of a chocolate bar), consumers do not always perceive colours and patterns as being indicators of commercial origin in themselves. The key requirement of distinctiveness may thus not always be fulfilled at the very outset. Like for other marks, distinctiveness may be however acquired through the use made of the sign and the resulting effect on consumer perception.In addition to the above, another aspect to take into account is that the law prohibits the registration of certain shapes and other characteristics of goods, for example shapes that are exclusively technical like that of a well-known company’s toy bricks or the shape of the Rubik’s Cube, irrespective of whether such signs are perceived by consumers as indicators of commercial origin.

Turning to tattoos, these are often artistic works (that is, drawings) that have one key characteristic: that of being attached to the human body. While tattoos are in principle protectable under copyright law (and potentially also trade mark and design law!) by the same conditions as any other kind of work, the peculiarity of the medium on which they are impressed may give rise to conflicts between the rights of the tattoo artist in relation to their tattoo and the rights of the person carrying such a tattoo. For example: can a tattoo artist object to the reproduction of their tattoo even if the person carrying it has already consented to the use of their own likeness? 

While this question has not yet received an exhaustive answer across Europe, in the USA a court recently ruled that the rights of the person carrying the tattoo prevail over the copyright of the tattoo artist. In this particular case, a videogame developer had already received permission from some high-profile basketball players, including LeBron James, to reproduce their likeness – including their tattoos – in avatars featured in the videogame. The ruling determined that permission was not also needed to clear the tattoo artists’ copyright in relation to tattoos visible on the athletes’ bodies.

Similarly to tattoos, building blocks of internet culture such as memes (examples include “Condescending Willy Wonka” and “Distracted boyfriend”) and GIFs also raise questions under copyright law. From the perspective of trade mark law, it is worth recalling that it is possible to register motion marks like, for example, the moving logo of a well-known telecommunications company or the signature move of a chef.

Unlike ‘objects’ that are perceived through one’s own mechanical senses (sight, hearing, touch), tastes and smells are perceived through chemical senses and are, as a result, highly subjective: the way something smells or tastes to a person may be different to how it smells or tastes to another person. Because of this peculiarity, can tastes and smells be protected by IP?

Insofar as trade marks and copyright are concerned, the answer is very similar: it is not possible to receive protection under either of them if the taste or smell at issue cannot be identified with sufficient precision and objectivity. The CJEU recently confirmed this in a case concerning copyright protection of the taste of a cheese spread.

When we think about IP rights, the focus cannot be limited to ‘traditional’ or ‘conventional’ subject matter: what we may regard as ‘non-traditional’ or ‘unconventional’ IP is an increasingly diverse and relevant group of ‘objects’.

The availability of different IP rights represents an opportunity for those seeking to protect ‘objects’ like those discussed in this article. Nevertheless, since IP rights grant their owners a monopoly, IP offices and courts are and should continue being mindful of the need to balance IP protection with the interests and rights of third parties and the public at large. All this requires, among other things, a thorough and careful examination of the requirements for protection under IP law.

当我们考虑知识产权时，重点不能局限于“传统”或“常规”的主题：我们需认识到“非传统”或“非常规”的知识产权是越来越多样化的 “对象”组别。

不同知识产权的可用性为那些寻求保护本文中讨论的“对象”的人提供了机会。 尽管如此，由于知识产权授予其所有者垄断权，知识产权局和法院现在并且应该继续注意平衡知识产权保护与第三方和广大公众的利益和权利的必要性。 除其他外，所有这些都需要对知识产权法下的保护要求进行彻底和仔细的审查。