Table of Contents

Trademark Law and Theory

Trademark Law and Theory

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Graeme B. Dinwoodie and Mark D. Janis

This important research Handbook brings together a set of illuminating works by the field’s leading scholars to comprise one of the broadest and most far-reaching overviews of trademark law issues. Organized around three areas of inquiry, the book starts by offering a rich variety of methodological perspectives on trademark law. Reflecting the multifaceted nature of contemporary trademarks, contributors have drawn from law and economics, political science, semiotic theory, and history. The Handbook goes on to survey trademark law’s international landscape, addressing indigenous cultural property, human rights issues, the free movement of goods, and the role of substantive harmonization. It concludes with a series of forward-looking perspectives, which focus on trademark law’s intersection with the laws of advertising and free speech, copyright law, cyberspace regulation, and design protection.

Chapter 8: The free movement (or not) of trademark protected goods in Europe

Thomas Hays

Subjects: law - academic, intellectual property law


7 Substantive trademark law harmonization: on the emerging coherence between the jurisprudence of the WTO Appellate Body and the European Court of Justice Gail. E. Evans* I. Introduction The conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)1 in 1994 presaged the advent of a global epoch in trademark rights. The TRIPS Agreement not only provides substantive standards for the eligibility and protection of trademarks, but also mandates that “effective” enforcement procedures are available under national legal systems. It does so by establishing a global network of “coordinate” national courts to enforce the substantive trademark provisions of the Agreement.2 Without replacing the national, territorially-based trademarks of Member States, TRIPS is based on principles of territoriality requiring independent trademark applications and actions for the enforcement of rights in each Member State of the World Trade Organization (WTO). Despite the fact that domestic trademark laws have been duly amended in accordance with the TRIPS Agreement throughout the 151 Member States of the WTO,3 multi-jurisdictional actions for trademark infringement indicate that * Reader in International Trade and Intellectual Property Law, Queen Mary, University of London. For an elaborated version of this chapter see Substantive Trade Mark Law Harmonization by Means of the WTO Appellate Body and the European Court of Justice: The Case of Trade Name Protection, JOURNAL OF WORLD TRADE LAW, Vol. 41, 6, 1127–62 (2007). 1 Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Marrakesh Agreement Establishing the World Trade Organization,...

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