Research Handbook on the Protection of Intellectual Property under WTO Rules
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Research Handbook on the Protection of Intellectual Property under WTO Rules

Intellectual Property in the WTO Volume I

Edited by Carlos M. Correa

This comprehensive Handbook provides an in-depth analysis of the origin and main substantive provisions of the TRIPS Agreement, the most influential international treaty on intellectual property currently in force.
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Chapter 13: Marks for Goods or Services (Trademarks)

Annette Kur


409 social status, or affiliation with certain peer groups, etc. Once a mark has attained that force of attraction, it becomes a business asset whose value is basically independent from the goods or services for which it is, or was originally, used. Viewed from a consumer policy perspective, as well as under the aspect of efficient competition, the phenomenon is not without risks.2 Owing to their capacity to symbolize and communicate extra-objective qualities (lifestyle, prestige, etc.), the psychological dimension of trademarks and hence their market power can be enormous. This may result in high consumer prices and lead to misallocation of resources; it may also enhance entry barriers for newcomers, impair market transparency, boost companies’ leveraging power, and so on.3 Such effects give rise to concern even in affluent societies, and they pose even thornier issues in countries where the majority of the population lives under economic conditions which barely allow the most basic needs to be satisfied.4 1.2 International trademark law before and after TRIPS Substantive international trademark law in the pre-TRIPS era was regulated by the Paris Convention (1883, last revised in Stockholm, 1967). Pursuant to the basic rule anchored in Art. 6, trademarks protected in different countries are independent of each other, with protection being confined to each territory. Art. 2 Paris Convention obliges each Member State to grant equal protection to nationals of other Paris Union Members (‘national treatment’). In addition to that, provisions such as Art. 6 bis (protection for well-known marks) and Art. 6...

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