For many intellectual property (IP) scholars, trade mark law can be divided into two parts: the part that needs to be reformed and the part that needs to be abolished. The part that needs to be reformed is the traditional, consumer-focused element of trade mark law. Although there is general acceptance that signs and symbols that denote the trade origin of goods and services deserve some degree of legal protection, there is also now widespread concern that trade mark law has become misshapen. The problems are manifold but include the fact that bars to registrability have been set too low; tribunals routinely apply the likelihood of confusion test too broadly; the notion of ‘confusion’ has been expanded in ways that are problematic; the circumstances in which we are prepared to tolerate some risk of confusion have not been properly articulated; defensive doctrines within trade mark law remain underdeveloped; mechanisms for detecting marks that should be removed from the register are ineffective; and remedies for trade mark infringement have become draconian. This long list of problems now needs to be viewed alongside recent scholarship that is challenging two of the largely unspoken assumptions on which the consumer-focused branch of trade mark law rests: first, that the supply of traditional trade marks such as words and devices is effectively infinite and, second, that the law’s only concern is to increase the supply of reliable information in the marketplace.
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- Is Trade Mark Law Fit for Purpose?
- Macmillan Education UK
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- Chapter 5