Kur, Annette --- "Marks for Goods or Services (Trademarks)" [2010] ELECD 454; in Correa, M. Carlos (ed), "Research Handbook on the Protection of Intellectual Property under WTO Rules" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on the Protection of Intellectual Property under WTO Rules

Editor(s): Correa, M. Carlos

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209047

Section: Chapter 13

Section Title: Marks for Goods or Services (Trademarks)

Author(s): Kur, Annette

Number of pages: 40

Extract:

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 con-
sumers, 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 consid-
erably 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 ...