Edited by Jacques de Werra
Chapter 9: Trademark licensing: the once and future narrative
This chapter will consider the development of the law of trademark licensing, primarily as it has emerged in the common law system. Our focus will be on the jurisprudential narrative that has given rise to trademark licensing law, without parallel to any other form of intellectual property licensing as it has evolved. Narrative has been described as: some kind of retelling … While a story just is a sequence of events, a narrative recounts those events, perhaps leaving some occurrences out because they are from some perspective insignificant, and perhaps emphasizing others … Narra- tives thus shape history (the series of events, the story of what happened).2 In a similar way, the narrative of trademark licensing can be understood as the retelling of the story of trademark licensing law and practice over time, as the trademark owner seeks ways to leverage the value of its trademark through use by third parties; the ensuing conflict between legal require- ments and commercial needs; and the resulting legal resolution, whereby the law gives legal structure to these changes and in turn these legal developments spawn and sanction new forms of third-party uses of trade- marks. As such, the law of trademark licensing can be profitably portrayed as a narrative of its jurisprudential story, shaped by the unique interplay of its legal and commercial circumstances over time. Against this backdrop, this chapter will set out the narrative of trademark licensing on the basis of the following: (i) the ever-evolving nature of
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