The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled mandates exceptions in national copyright laws to ensure access to special-format copies of books for people who are blind and visually impaired; it also establishes mechanisms to facilitate cross-border access to those formats. The treaty was heralded by a wide range of commentators as a step in a new direction in international copyright law. This chapter assesses the treaty’s significance through the lens of a consideration that has long been part of international copyright debates, namely, the push for a universal copyright law. I explore the ways in which the Marrakesh Treaty might alter our understanding of the notion (and mechanisms) of universalism in international copyright law. The chapter considers the universalist aspiration in the development of international copyright law and examines the range of mechanisms through which universalism might now be being pursued. Furthermore, I explain the conceptual features of Marrakesh that might signal a change in the international copyright landscape, because this treaty was a milestone in international copyright law. However, its importance might lie in several aspects that are not commonly discussed.

Traditionally, intellectual property’s right to exclude has implied that injunctive relief should always be available at the conclusion of a successful infringement action.1 However, in recent years that view has evolved. As discussed in Chapter 14, in the United States, the 2006 Supreme Court decision in eBay Inc. v. MercExchange imposed a four-part test requiring the plaintiff in a patent case seeking a permanent injunction to demonstrate “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”2 While this standard appears to impose quite a restrictive test, several members of the court emphasized that even under this discretionary standard, injunctive relief should remain available in the vast majority of cases.3

The nature and content of intellectual property law, which is heavily contingent on the state of technology and on social and market developments, have always been subject to ongoing transitions. How those transitions are effected and the shape they take is crucial to the ability of intellectual property (IP) to achieve its stated goals and to provide the necessary climate for investment in creativity, innovation and brand differentiation. The first half of this book explored those questions, as discussed more fully below in section 42.2.

In recent years, as well explained by Annette Kur,1 an assessment of the function of trademarks has become a direct doctrinal mechanism used by courts in the European Union to determine the scope of trademark protection in a number of contexts. In the United States, no equivalent doctrinal mechanism has developed, at least not in those precise terms; US courts do not speak the language of “functions” as the Court of Justice has now done for two decades. However, features of US trademark law have clearly been shaped with a similar awareness of the importance of the functions of marks. In particular, US courts have for over a century referenced the core function of a trademark to identify the source or origin of the product on which it is affixed. And litigants and scholars seeking to expand the scope of protection have sought to emphasize that marks do much more than identify source, often tendering explanations that hint at the advertising and investment functions of marks (without using those terms).

The expansion in subject matter of copyright, design and trade marks has made cumulation of protection a more common occurrence, even if the problem has long been recognised as a challenge for intellectual property law. EU law has no consistent approach to overlapping subject matter. In some cases, cumulation is permitted (and perhaps even mandatory). In others, it is looked upon with disfavour. However, it is clear that when regimes clash and cumulation rejected, trade mark law appears the one most likely to be regarded as pre-empted. This chapter considers reasons why this might be so, and finds most possible reasons wanting. However, this analysis does offer some important insights into the nature and challenges of trade mark law in Europe.