Works Of Art In Public Domain And Trade Mark Protection

Copyright, contrary to trade mark rights, is not of indefinite duration but ends, in most countries, 70 years after the death of the author. Trade mark rights can be renewed every ten years, so that they can last indefinitely, as long as renewal fees are paid.

The possibility of registering artistic work as trade marks, in order to obtain longer protection after copyright protection has run out, seems like a clever strategy for owners of works of art or museums that hold them. It is not as easy as it seems, though.

In a case earlier this year (Case E-5/16, Decision of 6 April 2017 http://www.eftacourt.int/uploads/tx_nvcases/5_16_Judgment_EN.pdf), the EFTA court ruled on this topic, upon a request by the Norwegian Industrial Property Office (NIPO) for an advisory opinion from the Board of Appeal on the interpretation of Art. 3(1)(b) to (f) Directive 2008/95/EC.

The Municipality of Oslo had applied to register several trade marks that consisted of depictions of works of art by Norwegian artist Gustav Vigeland, all of which were out of copyright because the protection period had run out. NIPO's Board of Appeal sought advice from the court regarding the criteria and circumstances that might be relevant to a refusal of such applications. The EFTA...