Edited by Robert Bird and Subhash C. Jain
Chapter 10: Protecting Unconventional Trademarks in the European Union and the United States
Willajeanne F. McLean* INTRODUCTION Businesses are always looking for ways to make their products and services memorable. Therefore, it should not be surprising that they have turned to the use of colors, sounds, slogans, scents and tastes and, in some instances, textures to distinguish their product(s) or service(s) from others in the market place. Nor should it be surprising that savvy businesses seek to protect these marketing tools from use by their competitors, and attempt to use intellectual property rights (more than likely, trademark law) to do so. Although, in theory, trademark registration is possible for unconventional trademarks, both in the United States and in the European Union, such registrations are far from commonplace (Frost, 2004). The ﬁrst part of the chapter will brieﬂy discuss the statutory underpinnings for the protection of trademarks, both within the United States and the European Union.1 The second part will examine individual decisions taken within the United States and the European Union in each of the abovementioned categories of unconventional marks. The third part of the chapter will address some of the questions that are implicated when protection is sought for unconventional marks. TRADEMARK PROTECTION WITHIN THE UNITED STATES AND THE EUROPEAN UNION In the United States, a trademark serves several purposes: it operates as a merchandising short cut, in that it lowers search costs for buyers (Landes and Posner, 1988), and it also signals the source of the good, even though that source is unknown (Bayer Co., Inc., v. United...
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