Trademark Licensing Without Quality Control: Is There Room for the American Naked Licensing Doctrine in EU Trademark Law?
GRUR INTERNATIONAL, 2026 (ESCI)
- Yayın Türü: Makale / Tam Makale
- Basım Tarihi: 2026
- Doi Numarası: 10.1093/grurint/ikag094
- Dergi Adı: GRUR INTERNATIONAL
- Derginin Tarandığı İndeksler: Emerging Sources Citation Index (ESCI)
- Eskişehir Osmangazi Üniversitesi Adresli: Evet
Özet
United States trademark law treats licensing a mark without quality control over the licensee - 'naked licensing' - as inherently deceptive conduct resulting in abandonment. European Union (EU) trademark law contains no comparable rule. The EU Trademark Regulation and the Trademark Directive impose no duty of control on the licensor, and use with mere consent is attributed to the proprietor for genuine use purposes. The contrast is puzzling, because the Court of Justice defines the essential function of the trademark by reference to the control of a single undertaking responsible for product quality. This article argues that the doctrine cannot be received de lege lata, since the grounds for revocation form a closed catalogue in which supervisory failure as such does not appear. The paradox is resolved once the origin function, which supplies the operative criterion for genuine use and revocation in this context, is distinguished from the quality function, which generates no free-standing supervisory duty for individual marks. The absence of an EU naked licensing doctrine does not make uncontrolled licensing irrelevant. EU law disciplines the underlying concern through functional equivalents, above all: the genuine use requirement, which asks whether licensed use still identifies an undertaking commercially responsible for the goods; licence-based remedies and exhaustion; the deceptiveness ground in cases of concrete misleading use; and liability rules outside trademark law.