A Handbook of Contemporary Research
Edited by Graeme B. Dinwoodie and Mark D. Janis
Chapter 2: The semiotic account of trademark doctrine and trademark culture
1 From communication to thing: historical aspects of the conceptualisation of trade marks as property Lionel Bently1 It is a common criticism of contemporary trade marks law (and one almost certainly represented by chapters in this volume) that legislatures and judges have expanded the rights of trade mark owners too far, at the expense of the needs or interests of other traders and the public interest.2 More specifically, it is argued that trade marks are granted too readily, that the rights granted to trade mark owners are too strong, that the situations in which trade mark rights are capable of being invalidated or revoked are too limited, and that the grounds on which a defendant can escape liability are too narrowly formulated or restrictively interpreted. For many of these commentators, the criticism is normative: positive law now affords trade marks owners broader and stronger rights than can be justified by reference to principle or policy. Sometimes, however, commentators attempt to explain the dynamics that have led to this (undesirable) expansion of trade mark rights.3 Chief amongst these explanatory narratives is the assertion that one of the root causes of expansion is that 1 Herchel Smith Professor of Intellectual Property and Information Law, University of Cambridge. A version of this chapter was previously presented at the ATRIP meeting in Parma in September 2006, at the London School of Economics in March 2007, at New York University’s Symposium on Innovation Law and Policy and the Fordham International Intellectual Property Law and Policy...
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