A Handbook of Contemporary Research
Edited by Graeme B. Dinwoodie and Mark D. Janis
Chapter 7: Substantive trademark law harmonization: on the emerging coherence between the jurisprudence of the WTO Appellate Body and the European Court of Justice
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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