Lisa Ramsey, ‘Protectable Trademark Subject Matter in Common Law Countries and the Problem with Flexibility’

… This chapter evaluates how Australia, New Zealand, Singapore, and the United States determine what subject matter or ‘signs’ are eligible for trademark registration and protection. One important feature of the trademark laws in these common law jurisdictions is flexibility in what types of signs can qualify as a trademark. The broadness of the definition of a ‘sign’ or ‘trademark’ in the laws of these four countries and other World Trade Organization (WTO) members is due, in part, to international obligations to protect trademarks in the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement. TRIPS Article 15(1) provides that ‘any sign’ can qualify as a trademark if it is capable of distinguishing one trader’s goods or services from those of others. Article 15(1) also states that ‘[s]uch signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks’. Allowing flexibility in what can be registered as a trademark can benefit companies seeking to distinguish their brands in new ways …

Ramsey, Lisa P, Protectable Trademark Subject Matter in Common Law Countries and the Problem with Flexibility (September 1, 2020). The Cambridge Handbook Of International And Comparative Trademark Law (Irene Calboli and Jane C Ginsburg eds, Cambridge University Press 2020).

First posted 2021-08-05 12:00:58

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