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Edited Legal Collections Data |
Book Title: Trademark Law and Theory
Editor(s): Dinwoodie, B. Graeme; Janis, D. Mark
Publisher: Edward Elgar Publishing
ISBN (hard cover): 9781845426026
Section: Chapter 2
Section Title: The semiotic account of trademark doctrine and trademark culture
Author(s): Beebe, Barton
Number of pages: 23
Extract:
1 From communication to thing: historical
aspects of the conceptualisation of trade
marks as property
Lionel Bently1
It is a common criticism of contemporary trade marks law (and one almost
certainly represented by chapters in this volume) that legislatures and judges
have expanded the rights of trade mark owners too far, at the expense of the
needs or interests of other traders and the public interest.2 More specifically,
it is argued that trade marks are granted too readily, that the rights granted to
trade mark owners are too strong, that the situations in which trade mark rights
are capable of being invalidated or revoked are too limited, and that the
grounds on which a defendant can escape liability are too narrowly formulated
or restrictively interpreted. For many of these commentators, the criticism is
normative: positive law now affords trade marks owners broader and stronger
rights than can be justified by reference to principle or policy. Sometimes,
however, commentators attempt to explain the dynamics that have led to this
(undesirable) expansion of trade mark rights.3 Chief amongst these explana-
tory narratives is the assertion that one of the root causes of expansion is that
1 Herchel Smith Professor of Intellectual Property and Information Law,
University of Cambridge. A version of this chapter was previously presented at the
ATRIP meeting in Parma in September 2006, at the London School of Economics in
March 2007, at New York University's Symposium on Innovation Law and Policy
and the Fordham International Intellectual ...
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URL: http://www.austlii.edu.au/au/journals/ELECD/2008/161.html