New Horizons in Intellectual Property series
Chapter 2: The Legal Nature of a Trade Mark as a Marketing Resource and a Structuring Device
1. INTRODUCTION This chapter will examine the legal features of a trade mark which enable it to perform the economic functions that will be considered in Chapters 3 and 4. These features explain how a trade mark provides a legal basis not only for a potentially valuable marketing resource, but also for a structuring device in the organization of the production and marketing of goods or services (or ‘products’). The starting point for this analysis is the legal basis on which a trade mark distinguishes marked products from other products of the same kind. A trade mark identiﬁes products that are likely to be consistent with each other in terms of their quality and other characteristics of importance to consumers and to remain consistent over time. This likelihood of consistency underlies a trade mark’s capacity to gain marketing power for the various reasons that will be explored in Chapter 3. This chapter will therefore examine the legal characteristics that marked products have in common and consider how these characteristics explain the likelihood of marked products being and remaining consistent with each other. It will also consider the nature of the consistency that marked products are likely to have in practice. When a sign is registered as a trade mark for the kind (or kinds) of products designated in its registration, it acquires a speciﬁc legal meaning concerning products of this kind. It signiﬁes that marked products have a common ‘origin’ or ‘trade origin’ and in effect represents...
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