ISBN : 9780198826576
This volume offers a detailed analysis of the issues related to the protection of non-traditional marks. In recent years, the domain of trademark law and the scope of trademark protection has grown exponentially. Today, a wide variety of non-traditional marks, including colour, sound, smell, and shape marks, can be registered in many jurisdictions. However, this expansion of trademark protection has led to heated discussions and controversies about the impact of the protection of non-traditional marks on freedom of competition and, more generally, on socially valuable use of these or similar signs in unrelated non-commercial contexts. These tensions have also led to increasing litigation in this area across several jurisdictions. This book provides an overview of the debate and state of the law surrounding non-traditional marks at the international, regional, and national level. In particular, this book addresses relevant international treaties administered by the World Intellectual Property Organization (WIPO) and the Agreement on Trade-Related Aspects to Intellectual Property Rights (TRIPS) as well as several regional and national legislations and leading judicial decisions in order to examine current law and practice culminating in critical reflections and suggestions on the topic.
Part I: Taking Stock - Legislative Framework and Practical Implications
1. Denis Croze: Making a Large Universe Visually Perceptible: The Development of Non-Traditional Marks in WIPO Treaties
2. Mitchell Adams and Amanda Scordamaglia: Non-Traditional Marks: An Empirical Study
3. Dev Gangjee: Non-Traditional Marks and Classification Traditions
4. Michael Handler: What Should Constitute Infringement of a Non-Traditional Mark?
5. Annette Kur: Keeping Indistinctive and Descriptive Shapes Free - The Broadened Limitation of Protection in the European Union
Part II: Assessing the Legislative Framework - Unresolved Challenges
6. Deven Desai: Should Trademark Laws Protect Non-Traditional Marks as Marketing Practices?
7. Ng-Loy Wee Loon: Special Restrictions on Registration of Product Shape Marks - A Breach of International Law?
8. Irene Calboli: Designing a Stricter Distinctiveness Requirement for Non-Traditional Marks under the Current Legislative Framework(s)
9. Graeme Dinwoodie: Aesthetic Functionality, Acquired Distinctiveness and Non-Traditional Marks
10. Justin Hughes: The Vexing Problem of Aesthetic Functionality in Non-Traditional Marks
Part III: Assessing the Impact on Freedom of Competition - Innovation Concerns
11. Gustavo Ghidini: Non-Traditional Marks as Eternal Monopolies on Product Features?
12. J. Glynn Lunney: Trade Dress Protection: The Error Costs of Making an Exception the Rule
13. Lavinia Brancusi: Assessing the Impact of Registering Non-Traditional Marks: A Competition Law Analysis
14. Arul Scaria: Non-Traditional Marks on Pharmaceutical Products: Non-Traditional Barriers to Access to Medicine?
15. Carolina Castaldi: The Economics and Management of Non-Traditional Marks
Part IV: Assessing the Impact on Freedom of Expression - Social and Cultural Concerns
16. Lisa Ramsey: Non-Traditional Marks and Inherently Valuable Expression
17. Martin Senftleben: The Corrosive Effect of Non-Traditional Marks on Cultural Follow-On Innovation
18. Haochen Sun: The Impact of Non-Traditional Marks on Access to Aesthetic Styles and Symbols