Trademark Law and Theory
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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.
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Chapter 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

Extract

6 Fundamental concerns in the harmonization of (European) trademark law Annette Kur* I. The roots and the upshot When the European Economic Communities were founded fifty years ago,1 the trademark laws applying in the member countries2 were far from homogeneous. Some of those differences were of a rather technical nature, but others reflected basically divergent attitudes towards the very foundations of trademark law. For instance, from a French point of view, it was taken for granted that the rights vested in a trademark owner were not essentially different from those accorded by other intellectual property rights: just as in patent or copyright law, the proprietor must be entitled to enjoin any kind of unauthorized use, no matter for which purpose. In Germany, on the other hand, trademark law and doctrine were strictly founded on the origin function, which was held to constitute the sole and mandatory guideline regarding the acquisition as well as the protection of marks. Based on its common law tradition, the UK3 endorsed still another approach – one which was less dogmatic than the German, and more competition-friendly than the French. And finally, the Benelux countries added strong new colours to the overall picture when they enacted a uniform law4 incorporating features like protection beyond the risk of confusion, which at the time were seen as strikingly modern.5 * Professor and Research Fellow, Department of Intellectual Property and Competition Law, Max Planck Institute for Intellectual Property, Munich, Germany. 1 The “Treaties of Rome”, i.e. the Treaty establishing the...

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