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JIPR Vol.10(2) [March 2005] >


Title: Trademark Law: Is Europe Moving Towards an Unduly Wide Approach for Anyone to Follow the Example?
Authors: Torremans, Paul Leo Carl
Keywords: Euopean trademark law
TRIPS Agreement
trademarkability
olfactory marks
sound marks
colour marks
Issue Date: Mar-2005
Publisher: CSIR
Abstract: In recent years, European Trademark Law has often been cited as an example of a modern trademark law that takes into account the needs of business and can be used as an example by other countries as a modern implementation of the standards found in the TRIPS Agreement. This paper looks at recent European developments in the area of the registration of various kinds of trademarks, such as colour, sound and smell marks. Particular attention is paid to the question: how these new types of marks meet the criteria for registrability and what would be the consequences of their registration? Caution is suggested in this respect and whilst there may be sound policy and business reasons to follow the European example in accepting these kinds of marks in principle, it is also suggested that strict safeguards need to be built in by any Asian legislature that wants to go down this path to avoid overly broad marks. In Europe, these safeguards had to be introduced by the Court of Justice in the Sieckmann case, which could be seen as a retraction of the original permissive approach. Any country going down the same path would be well advised to introduce these criteria and safeguards straight away.
Page(s): 127-132
ISSN: 0971-7544
Source:JIPR Vol.10(2) [March 2005]

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