Chapter 2 explores the philosophical justification and the legislative history of trade marks on the international level in order to support the view that there is the need for a special adjudicatory approach to trade mark investment arbitration. Specifically, this chapter also includes a historical overview of the inclusion of trade marks in investment treaties, from 1850s onwards. In most jurisdictions, the justification of the legal protection of trade marks rest on the “law and economy” or utilitarian approach, as originally presented by Landes and Posner. Most trade mark laws differentiate between trade marks and brands, although this distinction is not clearly adopted by other types of regulation (i.e. tobacco regulation). The history of legislative instruments protecting trade marks demonstrates that ever since the Paris Convention, the character and nature of trade marks is defined in trade mark laws and not in other treaties (for example Bilateral Investment Treaties).
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