Table of Contents

Trademark Protection and Territoriality Challenges in a Global Economy

Trademark Protection and Territoriality Challenges in a Global Economy

Elgar Intellectual Property and Global Development series

Edited by Irene Calboli and Edward Lee

As the modern business world becomes increasingly decentralized and globally focused, traditional interpretations and applications of trademark protection law are facing greater and greater challenges. This is particularly true regarding the principle of trademark territoriality, which holds that trademark rights are bound by the laws of individual nations. This timely volume offers expert analyses of the challenges facing crucial aspects of trademark law from some of the most prominent scholars in the field.

Chapter 1: Introduction: the inevitability of "territoriality challenges" in trademark law

Graeme W. Austin

Subjects: law - academic, intellectual property law, international economic law, trade law


How territorially tethered are trademarks? Legally, the answer seems to be: ìvery.î But if we move from legal doctrines and international treaties and consider trademarks in wider psychological, technological, and economic contexts, we might say: ìnot especially.î This tension between formalistic legal principles and the realities of trademarks in the marketplace is of enduring fascination. It is also of enormous practical relevance to firms wanting to roll out and protect brands on an international scale. In large part, trademark law doctrines, international instruments, and procedural frameworks reinforce trademarkís territoriality and the continued salience of the nation state to the creation and enforcement of trademark rights. Yet for many purposes, the strength and enforceability of trademark rights depend on what happens in peopleís minds, and the human mind is not a geographically confined thing. Because the sources that shape the human consciousness do not begin and end at a nationís borders, tensions will inevitably arise between trademark lawís territoriality principle and the realities of consumer perceptions and behaviors. And when we focus on the supply side, on the firms that market trademarked products in the modern international economy, we see similar tensions. Multinational firms ñ many of which own ìfamousî trademarks, the very kinds of marks that most obviously challenge trademark territoriality ñ are not exactly renowned for their allegiance to the nation states in which they conduct business.