Intellectual Property in the WTO Volume I
- Research Handbooks on the WTO series
Edited by Carlos M. Correa
Chapter 13: Marks for Goods or Services (Trademarks)
13 Marks for goods or services (trademarks*) Annette Kur 1. Introduction 1.1 The position of trademarks in the intellectual property system It is basically undisputed that trademarks occupy a special place within the spectrum of intellectual property rights. Unlike inventions or original works, distinctive signs are not considered as achievements that are worthy of protection as such; the ground for protection lies rather in their ‘origin function’, that is, in the ability of marks to convey information about the commercial origin of the goods or services to which they relate. It is further undisputed that the origin function of signs makes them an indispensable element of a competitive environment: it would be practically impossible otherwise to repeat purchases that were satisfactory, and avoid those that were not. Hence, trademarks enable entrepreneurs to reap the fruits of their commercial efforts, and thereby encourage further investment in the quality and variety of goods or services offered. This in turn benefits consumers, who also profit from the massive reduction in search costs.1 Vice versa, it follows that competition is distorted if marks are used by others in a way that misleads about the commercial origin of the goods. Although those assumptions are basically correct, the picture is considerably more nuanced in reality. Trademarks can be, and often are, much more than just a tool for conveying information about the commercial origin of goods or services. Supported by considerable and sophisticated marketing efforts, trademarks can turn into much-coveted symbols of lifestyle or specific attitudes....
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