Trademarks as Fictitious Commodities: An Erosion of the Public Interest? An Assessment of the use of trademarks over urban space at the example of London’s Regent Street and Paris’ Champs-Elysées

摘要

With reference to Karl Polyani’s notion of fictitious commodities we evaluate whether the protection of two worldwide known streets, namely ‘Regent Street’ in London and the ‘Champs- Elysées’ in Paris may be perceived as an erosion of the public interest and thus call for potential policy reformulation or reforms to substantive trademark law. The reasons for this choice are twofold: Firstly, the existing body of literature offers an in-depth discussion on the complex dynamics between the public interest and patents and copyrights, yet relatively little has been said so far on the correlation of the public interest and trademarks. Secondly, trademark protection over urban space is a recent phenomenon that has in and by itself not yet been properly grasped, neither from a policy, commercial or legal perspective. We conclude that the ownership structure of each of these two trademarks suggests that, contrary to intuition, it is the use of trademark protection rather than the renouncement from trademark protection that guarantees, at least in these two instances, the public interest. We contend however that the increased use of trademark protection over urban space does bear the potential for the erosion of the public interest and call upon policy makers to formulate guidelines in that respect.