In the latest book review from the Education Team, Shane Smyth discusses the fourth edition of Intellectual Property and Human Rights, edited by Paul L C Torremans and published by Wolters Kluwer.

This opus opened up new horizons to me as a humble trade mark attorney. In the preface, intellectual property law and human rights is described as a “niche topic”. However, I would question this and I certainly don’t argue with it being a topic which is starting to mushroom, particularly as we are now in the big wide world of political correctness.

The contributors are a range of academics and practitioners from across the globe, with topics covering the broad spectrum of IP rights. Even if as a MARQUES member you are blinkered to the field of trade marks, I would nevertheless urge you not to skip in particular the introductory chapters on how the two disciplines “live together”.

Many moons ago, I had the privilege of chairing a panel where the key note speaker was Simon Tam of the American dance rock band (I hope this is the right terminology) called The Slants. He was an inspirational speaker describing the challenges the band faced in reconciling provisions of the US Lanham Act on trade mark registrability with free speech. It certainly reinforced my own view that human rights is such a holy grail that it out trumps us mere mortals dabbling in legal principles of trade mark law.

There is a substantial chapter devoted specifically to trade marks and human rights. The contributor is Marco Ricolfi who is a Professor of Intellectual Property, Turin Law School, Universita Degli Studi di Torino and he poses the need to reconcile principled enforcement of trade mark rights with respect to human rights. He also identifies options on how this reconciliation may occur. I must admit that the ECHR Paeffgen case was new to me and as a result, I will no longer pour scorn on whether or not a domain name registration is truly a proprietary right.

Asking a trade mark attorney to advise on a trade mark issue only having regard to trade mark law is akin to offering a child a biscuit but to insist that they only taste the coating. The child might never find that beneath the surface is the substantive taste.

One of the substantive areas of law lurking below the surface is human rights. The authors bring human rights to the surface or at least put it in the mix with flavouring how IP and human rights interact in one bite.

Shane Smyth is a Partner of FR Kelly and a member of the MARQUES Education Team