Elgar Intellectual Property and Global Development series
Edited by Irene Calboli and Edward Lee
Chapter 1: Introduction: the inevitability of "territoriality challenges" in trademark 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.