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Registration, infringement, competition and markets under the New Zealand Trade Marks Act 2002
The traditional rationale for the legal protection of trade marks is that trade marks protect consumers from con fusion and reduce consumer search costs in the market place. Producers use trade marks to distinguish their goods and services from the goods and services of their competitors. Facilitating competition is therefore a fundamental, underlying principle of trade mark law. Trade mark protection provides incentives to producers to invest in consistency and quality, which benefits consumers. Trade marks thus have origin, guarantee and investment functions. They are indicators of trade source, they serve as guarantees of quality, and they provide a mechanism and incentive for investment in advertising and promotion
Proposal for a first Council Directive to approximate the laws of the Member States relating to trade-marks. Proposal for a Council Regulation on the Community trade-mark. COM (80) 635 final, 19 November 1980. Bulletin of the European Communities, Supplement 5/80
Cover title: New trade-mark system for the Community. Proposed Directive and Regulatio
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Plain Packaging of Tobacco Products under EU Intellectual Property Law
Plain packaging is a new, yet unapplied, tobacco control policy tool. It would remove from cigarettes boxes all fancy and design elements displayed on packaging, such elements usually being registered by tobacco manufacturers as trade marks. The article explores the compatibility of this new measure with EU intellectual property law (in particular with trade mark and design law) as well as with the fundamental rights provisions enshrined in the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union
Toward a More Coherent Doctrine of Trademark Genericism and Functionality: Focusing on Fair Competition
The doctrines of trademark genericism and functionality serve similar functions under the Lanham Act and the common law of unfair competition. Genericism, in the context of word marks, and functionality, for trade dress, bar trademark registration under the Lanham Act and, both under the Act and at common law, render a trademark unprotectable and invalid. In the word mark context, genericism stands for the proposition that certain parts of vocabulary cannot be cordoned off as trademarks; all competitors must be able to use words that consumers understand to identify the goods or services that they are selling. Functionality likewise demands that certain aspects of product design cannot be legally protected as trade dress, as to do so would potentially limit competitorsâ ability to make products that work as well at the same price. The core concern, for both doctrines, is or should be the preservation of free and fair market competition. Part I of this Article explains the theoretical parallels between the doctrines of genericism and functionality, and examines the history and purpose of these doctrines. A finding that a word is or has become generic, or that a form of trade dress is functional, negates a markâs registration and protection under the Lanham Act, as well as under state and common law. Even incontestable marks can be declared invalid, regardless of the passage of time, under either doctrine. The types of trademarks typically at issue when making genericism and functionality determinationsâword marks that are, at best, descriptive, or product design functioning as trade dressâare correctly described as weak. The genericism and functionality doctrines therefore play a critical role in marking the boundaries of trademark law. To properly draw those lines, decision makers need to correctly define and understand the theory underlying both doctrines. In Part II, this Article argues that both genericism and functionality, in their practical interpretation and purpose, should more clearly reflect the core principle of protecting fair competition. In particular, the concept of viable, competitive alternativesâeither in the form of words or alternative designsâshould play an enhanced role in determining whether an erstwhile trademark is generic or functional. The various tests for genericism and functionality currently employed by the courts often attempt to draw formalistic distinctions among categories of words or product features that may confound business owners (and their lawyers) and divert the focus of the courtsâ inquiry in such cases away from the core value at the heart of both doctrines: preserving fair competition
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