cambridge university press trade marks and brands an interdisciplinary critique jul 2008 kho tài liệu bách khoa

This page intentionally left blank Trade Marks and Brands Recent developments in trade mark law have called into question a variety of basic features, as well as bolder extensions, of legal protection Other disciplines can help us think about fundamental issues such as: What is a trade mark? What does it do? What should be the scope of its protection? This volume assembles essays examining trade marks and brands from a multiplicity of fields: from business history, marketing, linguistics, legal history, philosophy, sociology and geography Each part pairs lawyers’ and non-lawyers’ perspectives, so that each commentator addresses and critiques his or her counterpart’s analysis The perspectives of non-legal fields are intended to enrich legal academics’ and practitioners’ reflections about trade marks, and to expose lawyers, judges and policy-makers to ideas, concepts and methods that could prove to be of particular importance in the development of positive law L I O N E L B E N T L Y is Herchel Smith Professor of Intellectual Property Law at the University of Cambridge, Director of the Centre for Intellectual Property and Information Law at the University of Cambridge, and a Professorial Fellow at Emmanuel College, Cambridge J E N N I F E R D A V I S is Newton Trust Lecturer and Fellow of Wolfson College, University of Cambridge J A N E C G I N S B U R G is the Morton L Janklow Professor of Literary and Artistic Property Law at Columbia University School of Law She also directs the law school’s Kernochan Center for Law, Media and the Arts Cambridge Intellectual Property and Information Law As its economic potential has rapidly expanded, intellectual property has become a subject of front-rank legal importance Cambridge Intellectual Property Rights and Information Law is a series of monograph studies of major current issues in intellectual property Each volume contains a mix of international, European, comparative and national law, making this a highly significant series for practitioners, judges and academic researchers in many countries Series editor William R Cornish Emeritus Herchel Smith Professor of Intellectual Property Law, University of Cambridge Lionel Bently Herchel Smith Professor of Intellectual Property Law, University of Cambridge Advisory editors Franc¸ois Dessemontet, Professor of Law, University of Lausanne Paul Goldstein, Professor of Law, Stanford University The Rt Hon Sir Robin Jacob, Court of Appeal, England A list of books in the series can be found at the end of this volume Trade Marks and Brands An Interdisciplinary Critique Edited by Lionel Bently, Jennifer Davis and Jane C Ginsburg CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521889650 © Cambridge University Press 2008 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2008 ISBN-13 978-0-511-40899-1 eBook (EBL) ISBN-13 978-0-521-88965-0 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate Contents List of figures and tables Notes on the contributors Editors’ preface Table of cases Table of statutes Part I Legal and economic history The making of modern trade mark law: the UK, 1860–1914 A business history perspective DAVID M HIGGINS Part II Current positive law in the EU and the USA 42 63 Between a sign and a brand: mapping the boundaries of a registered trade mark in European Union trade mark law JENNIFER DAVIS 65 ‘‘See me, feel me, touch me, hea[r] me’’ (and maybe smell and taste me too): I am a trademark – a US perspective JANE C GINSBURG 92 Part III The making of modern trade mark law: the construction of the legal concept of trade mark (1860–1880) LIONEL BENTLY page viii ix xv xvii xxx Linguistics 105 ‘How can I tell the trade mark on a piece of gingerbread from all the other marks on it?’ Naming and meaning in verbal trade mark signs ALAN DURANT 107 v vi Contents What linguistics can for trademark law GRAEME B DINWOODIE Part IV Marketing Brand culture: trade marks, marketing and consumption JONATHAN E SCHROEDER Part V 10 Sociology The irrational lightness of trade marks: a legal perspective CATHERINE W NG 223 Law and Economics 241 The economic rationale of trade marks: an economist’s critique Philosophy Trade marks as property: a philosophical perspective DOMINIC SCOTT, ALEX OLIVER AND MIGUEL LEY-PINEDA 267 283 285 An alternative approach to dilution protection: a response to Scott, Oliver and Ley-Pineda MICHAEL SPENCE Part VIII 15 239 A Law-and-Economics perspective on trade marks Part VII 14 199 201 JONATHAN ALDRED 13 177 CELIA LURY ANDREW GRIFFITHS 12 161 Trade mark style as a way of fixing things Part VI 11 159 ‘Brand culture: trade marks, marketing and consumption’ – responding legally to Professor Schroeder’s paper DAVID VAVER 140 Anthropology 306 317 An anthropological approach to transactions involving names and marks, drawing on Melanesia JAMES LEACH 319 Contents 16 Traversing the cultures of trade marks: observations on the anthropological approach of James Leach MEGAN RICHARDSON Part IX 17 Geography 343 359 Geographical Indications: not all ‘champagne and roses’ BRONWYN PARRY 18 vii 361 (Re)Locating Geographical Indications: a response to Bronwyn Parry DEV GANGJEE Bibliography Index 381 398 423 List of figures and tables FIGURES 2.1 Total trade mark registrations in England, 1882–1914 7.1 C O L O M A advertisement, c 1999 7.2 Classical architectural imagery from Danske Bank, Copenhagen (photo: Jonathan E Schroeder) 7.3 Merrill Lynch advertisement, c 1998 Reproduced courtesy of Merrill Lynch 7.4 Architectural referents from V E R I S I G N , c 2003 Reproduced courtesy of V E R I S I G N 7.5 Dimensions of brand culture 16.1 Examples of elaborate labels (F I S H S A U C E label, O L D E N G L A N D S A U C E label) Source: R L Moorby et al for the Patent Office, A Century of Trade Marks 1876–1976 (London: HMSO, 1976) 42 16.2 K A N G A R O O , B O O M E R A N G and E M U trade marks Source: http://pericles.ipaustralia.gov.au/atmoss/ falcon.application.start page 50 165 168 171 173 175 346 354 TABLES 2.1 Highly trade-mark-intensive classes, 1882–1914 2.2 Duration of registered trade marks viii 52 53 ... end of this volume Trade Marks and Brands An Interdisciplinary Critique Edited by Lionel Bently, Jennifer Davis and Jane C Ginsburg CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne,... articles and casebooks, including Trademarks and Unfair Competition: Law and Policy (2nd edn, 2007) (with M Janis) and International Intellectual Property Law and Policy (with W Hennessey and S... Law and Judgments in Transnational Disputes (to be published in 2008) is a reader in law at the University of Manchester His teaching and research interests include trade mark law, company law and