The Protection of Non-Traditional Trademarks

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.

This is an open access title available under the terms of a CC BY-NC-ND 3.0 licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations.

Sommario

• Part I: Assessing the Legal Framework and Unresolved Challenges


• 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: Paying the Price for Admission: Non-Traditional Marks Across Registration and Enforcement


• 4: Annette Kur: Yellow Dictionaries, Red Banking Services, Some Candies and a Sitting Bunny: Protection of Colour and Shape Marks from a German and European Perspective


• 5: Justin Hughes: Non-Traditional Marks and the Dilemma of Aesthetic Functionality


• 6: Deven Desai: Should Trademark Laws Protect Non-Traditional Trademarks?A Look at How Marketing Practices Try to Capture Essences


• 7: Ng-Loy Wee Loon: Absolute Bans on the Registration of Product Shape Marks - A Breach of International Law?


• 8: Michael Handler: What Should Constitute Infringement of a Non-Traditional Mark? The Role of "Trademark Use"


• 9: Hoachen Sun: Protecting Non-Traditional Trademarks in China: New Opportunities and Challenges


• Part II: Assessing the Impact on Competition and Culture


• 10: Gustavo Ghidini: The Protection of (Three-Dimensional) Shape Trademarks and Its Implications for the Protection of Competition


• 11: J. Glynn Lunney: Non-Traditional Trademarks: The Error Costs of Making an Exception the Rule


• 12: Lavinia Brancusi: Assessing the Impact of Non-Traditional Marks: A European Union Competition Law Analysis


• 13: Carolina Castaldi: The Economics and Management of Non-Traditional Marks: Why, How Much, What and Who


• 14: Arul Scaria and Kavya Susan Mammen: Non-Traditional Marks on Pharmaceutical Products: Non-Traditional Barriers to Access to Medicine?


• 15: Irene Calboli: Hands Off "My" Colors, Patterns, and Shapes! How Non-Traditional Trademarks Promote Standardization and May Negatively Impact Creativity and Innovation


• 16: Martin Senftleben: A Clash of Culture and Commerce: Non-Traditional Marks and the Impediment of Cyclic Cultural Innovation


• 17: Lisa Ramsey: Non-Traditional Marks and Inherently Valuable Expression


• 18: Katya Assaf: Non-Traditional Trademark Protection as (Non-Traditional) Means of Cultural Control

Info autore

Irene Calboli is Professor of Law at Texas A&M University School of Law, and Transatlantic Technology Law Forum Fellow at Stanford Law School. She has been a visiting professor and scholar in academic institutions world-wide. Most recently, she was Visiting Professor, Lee Kong Chian Fellow, and the Founding Deputy Director of the Applied Research Centre for Intellectual Assets and the Law in Asia, a Centre that she headed from 2015 until 2017, at Singapore Management University School of Law. An elected member of American Law Institute and associate member of the Singapore Academy of Law, she currently serves, inter alia, as member of the Council of the International Law Association (Singapore Branch), Chair of the Art Law Section of the Association of American Law Schools, and member of the Legislation and Regulation Committee of the International Trademark Association.

Martin Senftleben is Professor of Intellectual Property, Centre for Law and Internet, Vrije Universiteit Amsterdam, and Of Counsel, Bird & Bird, with admission to the bar in The Hague and Düsseldorf. Besides intellectual property courses at his own university, he regularly teaches at the Centre for International Intellectual Property Studies (CEIPI), Strasbourg, the EBS University of Business and Law, Wiesbaden, the HANKEN School of Economics, Helsinki, the Munich Intellectual Property Law Center (MIPLC) and the Universities of Vienna and Catania. Professor Senftleben is a member of the Executive Committee of the Association littéraire et artistique internationale (ALAI) and the International Association for the Advancement of Teaching and Research in Intellectual Property Law (ATRIP).

Riassunto

Written by legal scholars and economists from a variety of jurisdictions, this book is an important contribution to debates on the continuous expansion of the scope of trade mark protection, providing a detailed analysis of legal problems and solutions in the field of non-traditional marks.

Prefazione

Voted IPKAT Best Trade Mark Book 2018

Testo aggiuntivo

The increased flexibility of the application for registration together with developments in modern marketing has extended the scope of trade marks, both practically and philosophically. The Protection of Non-Traditional Trade Marks [...] serves to help us navigate the debate on these developments from a legal, economic and cultural perspective, it equips us with both empirical evidence and theoretical frameworks as the tools to do so [...] This book is a useful source for policymakers, trade mark examiners, trade mark attorneys, judges and researchers with an interest in trade marks. In particular, anyone wanting to keep abreast the current climate and future of the trade mark landscape in relation to non-traditional marks and branding.

Relazione

The increased flexibility of the application for registration together with developments in modern marketing has extended the scope of trade marks, both practically and philosophically. The Protection of Non-Traditional Trade Marks [...] serves to help us navigate the debate on these developments from a legal, economic and cultural perspective, it equips us with both empirical evidence and theoretical frameworks as the tools to do so [...] This book is a useful source for policymakers, trade mark examiners, trade mark attorneys, judges and researchers with an interest in trade marks. In particular, anyone wanting to keep abreast the current climate and future of the trade mark landscape in relation to non-traditional marks and branding. Hayleigh Bosher, IPKAT

Dettagli sul prodotto

• Autori: Irene Calboli, Irene (Professor Calboli, Martin Senftleben
• Con la collaborazione di: Irene Calboli (Editore), Octavio Ferraz (Editore), Jeff King (Editore), Martin Senftleben (Editore), Senftleben Martin (Editore)
• Editore: Oxford University Press
• Lingue: Inglese
• Formato: Copertina rigida
• Pubblicazione: 13.12.2018
• EAN: 9780198826576
• ISBN: 978-0-19-882657-6
• Pagine: 432
• Categorie: Scienze sociali, diritto, economia > Diritto; LAW / Intellectual Property / Trademark, LAW / Intellectual Property / Copyright, LAW / Intellectual Property / Patent, Trademarks law