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Journal of Intellectual Property Law & Practice Advance Access originally published online on November 6, 2006
Journal of Intellectual Property Law & Practice 2006 1(13):861-866; doi:10.1093/jiplp/jpl175
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© The Authors (2006). Published by Oxford University Press. All rights reserved

Whose trade mark rights? What the Microsoft case means for trade mark owners

Christian Rohnke *

Legal context. The article considers the influence of the commission ruling in the Microsoft case, forcing Microsoft to use its WINDOWS-trade mark for an ‘unbundled’ version of the program in the light of the trade mark owner's properties rights. The scope of these rights is determined by the function of the trade mark and the rights that the trade mark laws confer to the owner in case of infringement.

Key points. Trade marks are protected as property rights under community law. They are the embodiment of past investments and transform the reputation of the owner into a bankable asset. Consumers rely on trade mark owners' control over quality. This is mirrored by the rights of the trade mark owner to stop interference with quality and image, in particular in the context of resale of altered products. Any interference that would be considered a trade mark infringement if committed by a private party should be considered an interference with the protected property right if caused by a government agency. This interference is not justified by the public interest because trade mark rights also embody important public interests.

Practical significance. If the analysis proposed in the article is followed, intellectual property rights have to be given greater weight in shaping antitrust remedies.

*Christian Rohnke is partner in the Hamburg office of White & Case LL.P. and a Professor at the Hamburg Technical University. White & Case LL.P. represents Microsoft, Inc.


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