New Horizons in Intellectual Property series
Chapter 5: An Economic Perspective on Trade Mark Law
1. INTRODUCTION The previous chapters of this book have considered the legal, economic and organizational functions of the trade mark. Chapter 2 examined the legal meaning that a trade mark signiﬁes and its legal nature as the basis of an exclusive identity that its owner can confer on its products for marketing purposes.1 Chapter 3 examined the various economic functions that a trade mark can perform as the signiﬁer of a speciﬁc trade origin and the legal basis of an exclusive identity and considered how a trade mark can develop into a valuable marketing resource. Chapter 4 examined the role of the trade mark in the organization of economic activity and showed how it has contributed to the evolution of ﬁrms and to changes in the organization of streams of economic activity. This chapter will address the implications of the previous chapters for trade mark law. In particular, it will consider how the awarding and protection of exclusive property rights over signs is necessary to ensure that trade marks can perform their legal, economic and organizational functions and how these rights can be calibrated to help maximize the overall beneﬁt that trade marks generate. The owner of a registered trade mark enjoys exclusive property rights that enable it, within certain limits, to prevent other ﬁrms from using the same sign and certain similar signs in the marketing and promotion of their own products. The intangible nature of a sign means that the owner of a trade...
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