Founding a human rights culture for trade marks : a human rights-based analysis of tobacco plain packaging and anti-counterfeiting in Australia
- Publication Type:
- Thesis
- Issue Date:
- 2018
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It is important to recognise the human rights implications of trade mark law using a human rights-based approach to analysis of intellectual property that is part of a broader culture for trade marks which encourages compliance with human rights. International scholarly debate about the best way to conceptualise the relationship between intellectual property and human rights does not concentrate on trade marks. This research contributes a new approach to this scholarship, drawing on two case studies of Australian trade mark legislation to understand the position of trade marks more comprehensively. The case studies demonstrate that rights conferred by trade marks and the mechanisms used to protect trade marks can have important human rights implications. Disputes about tobacco plain packaging legislation demonstrate potential conflicts between trade mark rights and human rights to health, property and the right to benefit from science and culture. The scope of protection mechanisms to discourage the use of counterfeit trade marks indicates potential conflicts between trade mark rights and civil rights, although effective protection against counterfeiting could aid realisation of the human right to health.
The findings in the case studies reinforce concerns that features of the international legal environment influence states to give trade mark rights and associated protection mechanisms primacy over human rights in domestic lawmaking. This limits the ability of states to recognise their binding human rights obligations in international law. Protection for intellectual property through bilateral, plurilateral and multilateral trade agreements can also have a chilling regulatory impact on the realisation of human rights obligations. The negotiation and impact of these agreements needs to be reconsidered from a human rights perspective.
This thesis contributes to the field by proposing an analytical approach to intellectual property that recognises interdependent human rights obligations and special features of economic, social and cultural rights that are important to the relationship between intellectual property and human rights. The analytical approach should be used with other approaches recommended by existing models that conceptualise the relationship between intellectual property and human rights, to build a human rights culture for trade marks that emphasises binding human rights obligations. The approaches considered can also be modified to respond to local conditions in individual states. Using a range of analytical approaches in a manner that recognises different local conditions will have potentially valuable application in Australia, where there are several problems with the comprehensive implementation of human rights obligations. Further modifications that respond to specific conditions in other states could enable these analytical approaches to be used together to more broadly shape a human rights culture for trade mark protection internationally so that states can promote and foster their binding international human rights obligations.
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