Elgar Commentaries series
Until recently, trademark protection was probably the least controversial regime of intellectual property under TRIPS. There are two obvious reasons for this lack of controversy. The first is that the importance and utility of trade- marks is generally accepted. Ensuring that accurate information is provided to consumers is seen by most commentators as a sufficient justification for trademarks. The second reason is that the nature of trademark law and, in particular, the TRIPS provisions dealing with trademarks confer considerable discretion on Members as to the means by which commonly accepted trademark principles are to be interpreted, applied and incorporated into domestic law. This discretion is revealed both by the wording of the relevant provisions and the Panel decisions concerning trademark disputes. All of the trademark disputes have been resolved in favour of the respondent to complaints on the basis that the respondent had the discretion to do what was complained of. In Indonesia – Autos Indonesia had the power to impose special requirements in respect of trademarks used on cars produced with a government subsidy, the US had the power to determine the legitimate owner of a trademark and the EC was able to make exceptions in its regulations concerning geographical indications (GIs) to the rights of a trademark owner. As for the wording of the provisions them- selves, they confer considerable discretion as to the interpretation of terms and issues such as ‘distinctiveness’ and ‘likelihood of confusion’. There is a general acceptance that trademarks have a beneficial effect on trade.
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