Private Law Theory

INTRODUCTION
Identifying a change that might productively be made to trade mark law is remarkably difficult. This is not because the law is near perfection in the jurisdictions with which we are familiar. On the contrary, it is because there are so many problems jostling for attention. The role that trade mark registration is intended to perform, and how it relates to protection for unregistered marks, is poorly understood; the test for distinctiveness has been weakened, without adequate discussion or analysis of why such a change might or might not be desirable; trade mark owners have been given expanded rights to protect against forms of ‘harm’ that rest on flimsy empirical and theoretical foundations; the communicative and free speech interests of artists, consumers, parodists and social critics are inadequately protected by current defensive doctrines; and courts often afford remedies that appear detached from the underlying justifications for trade mark protection …

Burrell, Robert and Handler, Michael, (Re)Claiming Trade Mark Protection in GB Dinwoodie and MD Janis (eds), Research Handbook on Trademark Law Reform (Edward Elgar, 2021); [2021] University of New South Wales Law Research Series 9.

First posted 2021-02-01 07:32:44