Trademark Law and Theory
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Trademark Law and Theory

A Handbook of Contemporary Research

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 17: Culture, traditional knowledge, and trademarks: a view from the South

Coenraad Visser


16 Trademarks and traditional knowledge and cultural intellectual property Susy Frankel* I. Introduction The substantive law of trademarks is in the wings rather than on center stage of the international intellectual property debate. Similarly, traditional knowledge and cultural property concerns of indigenous peoples in relation to trademarks have not taken the center stage of the debate regarding indigenous peoples’ intellectual property rights.1 Much of the international intellectual property discourse concerning indigenous peoples’ rights is focused on patent law and copyright. Patent law, in particular, has drawn attention to indigenous peoples’ rights in their traditional knowledge because of the role patent law plays in the relationship between indigenous peoples and bio-prospecting. Patent law’s direct nexus with development, technology transfer, and subjectspecific matters, such as pharmaceuticals, places it at the epicenter of international intellectual property tensions. This tension is played out in debate where two apparent sides emerge: the developed and developing world.2 The intellectual property rights of indigenous peoples have, in part, evolved as a concern primarily of developing countries that are looking for their comparative advantage in intellectual property at times when their disadvantage under * Professor of Law, Victoria University of Wellington, New Zealand, Thanks to Graeme Dinwoodie and Mark Janis for their constructive comments on drafts. 1 There are a number of forums where the ambit of international intellectual property protection and traditional knowledge is on the agenda. The main arenas of this discussion are: the Convention on Biological Diversity, see; the World Intellectual Property...

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