Trade Marks and Brands: An Interdisciplinary Critique

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Recent developments in trade marks 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 chapter 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.
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Editorial Reviews

From the Publisher
Review of the hardback: The past two decades have witnessed an explosion of research into the very ontological foundations of trade mark law. Few books however have tried to venture systematically into the heart of the legal beast to construct a truly comprehensive view of what the nature and function of trade marks are and the scope of their legal protection as Trade Marks and Brands: an Interdisciplinary Critique does. The book draws on a number of aspects of trade mark law, namely legal and business history, marketing, linguistics, philosophy, sociology and geography, giving different flavours to the law. The originality of the book lies not only in the fact that it brings these different aspects together, but also in allowing each commentator to address and critique their counterpart's analysis. The book is primarily aimed at lawyers, non-lawyers and policy-makers and assumes that the reader is already up to speed on the subject.' Book Reviews

Review of the hardback: 'The editor's claim in the preface of the uniqueness of this work, on the basis of the broad, inter-related range of contributions, is largely justified. Throughout this volume, contributors bear in mind that legislation is inevitably behind constantly-evolving developments and draw readers into considering the challenges ahead. This work will no doubt be useful to scholars and students as well as to non-specialists wishing to broaden their knowledge on the subject.' World Intellectual Property Organisation Magazine

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Product Details

Meet the Author

Lionel Bently is Herchel Smith Professor of Intellectual Property Law at the University of Cambridge, Director of the Centre of Intellectual Property and Information Law at the University of Cambridge, and a Professorial Fellow at Emmanuel College, Cambridge.

Jennifer Davis is Newton Trust Lecturer and College Lecturer at Wolfson College, University of Cambridge.

Jane C. Ginsburg is the Morton L. Janklow Professor of Literary and Artistic Property Law at the Columbia Law School. She also directs the law school's Kernochan Center for Law, Media and the Arts.

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Table of Contents

Pt. I Legal and economic history 1

1 The making of modern trade mark law : the construction of the legal concept of trade mark (1860-1880) Lionel Bently Bently, Lionel 3

2 The making of modern trade mark law : the UK, 1860-1914 : a business history perspective David M. Higgins Higgins, David M. 42

Pt. II Current positive law in the EU and the USA 63

3 Between a sign and a brand : mapping the boundaries of a registered trade mark in European Union trade mark law Jennifer Davis Davis, Jennifer 65

4 "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 Ginsburg, Jane C. 92

Pt. III Linguistics 105

5 '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 Durant, Alan 107

6 What linguistics can do for trademark law Graeme B. Dinwoodie Dinwoodie, Graeme B. 140

Pt. IV Marketing 159

7 Brand culture : trade marks, marketing and consumption Jonathan E. Schroeder Schroeder, Jonathan E. 161

8 'Brand culture : trade marks, marketing and consumption' - responding legally to Professor Schroeder's paper David Vaver Vaver, David 177

Pt. V Sociology 199

9 Trade mark style as a way of fixing things Celia Lury Lury, Celia 201

10 The irrational lightness of trade marks : a legal perspective Catherine W. Ng Ng, Catherine W. 223

Pt. VI Law and economics 239

11 A law-and-economics perspective on trade marks Andrew Griffiths Griffiths, Andrew 241

12 The economic rationale of trade marks : an economist's critique Jonathan Aldred Aldred, Jonathan 267

Pt. VII Philosophy283

13 Trade marks as property : a philosophical perspective Dominic Scott Scott, Dominic Alex Oliver Oliver, Alex Miguel Ley-Pineda Ley-Pineda, Miguel 285

14 An alternative approach to dilution protection : a response to Scott Oliver and Ley-Pineda Michael Spence Spence, Michael 306

Pt. VIII Anthropology 317

15 An anthropological approach to transactions involving names and marks, drawing on Melanesia James Leach Leach, James 319

16 Traversing the cultures of trade marks : observations on the anthropological approach of James Leach Megan Richardson Richardson, Megan 343

Pt. IX Geography 359

17 Geographical indications : not all 'champagne and roses' Bronwyn Parry Parry, Bronwyn 361

18 (Re)locating Geographical indications : a response to Bronwyn Parry Dev Gangjee Gangjee, Dev 381

Bibliography 398

Index 423

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