Elgar Intellectual Property and Global Development series
Edited by Irene Calboli and Edward Lee
Chapter 3: Interactivity, territoriality, and well-known marks
The majority of articles discussing the well-known marks doctrine typically begin with an overview of how the ìglobal marketplaceî has created a space where foreign trademarks easily cross boundaries. These articles cite the advances in technology and travel that allow consumers from different nations to view products and their corresponding trademarks through television, the Internet, and while traveling in foreign countries. Due to this, trademarks that are well known in their home nation can become more easily well known in foreign nations. Therefore, the argument continues, the test for whether a foreign mark has become well known in other nations should be based on the extent to which those foreign consumers had the ability to visually perceive the foreign trademarks (while at home or on foreign travel). I call this theory of well-known marks the ìpassive perceptionî theory because it bases consumer recognition of foreign marks on the ability of consumers to passively perceive foreign trademarks. While these advances in technology and travel are undisputed, the underlying assumptions of the passive perception theory are faulty. The assumptions of the passive perception theory are twofold: that a passive perception theory is consistent with the norms of international trademark law, and that consumers can come to recognize foreign marks simply through visual cues. I seek to disprove these assumptions and, in addition, propose my own theory of well-known marks, one that is based on interaction with foreign marks.
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