Elgar Intellectual Property and Global Development series
Edited by Irene Calboli and Edward Lee
Chapter 2: Protection of well-known marks: a transnational perspective
From its vigorous support of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)to the current push in favor of the Anti-Counterfeiting Trade Agreement (ACTA),the United States has been at the forefront in encouraging the effective protection of intellectual property rights worldwide. This is hardly surprising because the United States is the largest producer country of informational assets in the world and has reason to assure that those assets are protected abroad. In this chapter, I wish to discuss a departure in the general thrust of American policy in the international protection of what one might call ìits first world assets.î I refer to the failure of United States law to create a coherent policy in the protection of well-known marks despite its treaty obligations under Article 6bis of the Paris Convention,which requires member countries to protect marks that are well known in a member country even though they are not registered or used in the protecting country. United States case law is in disarray on this issue and, for the moment, there seems to be no interest to remedy the problem legislatively. Some courts believe that the current provisions of the Lanham Actare sufficient to accommodate the well-known marks doctrine, but most do not.
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