Book Review
Readability and the inter-relation of themes are much enhanced by the "Noah's ark" progression of the book: each section brings on board a pair of contributions on one of the above-named topics. The writers, all experts in their fields, consistently refer to, argue against or support the other contribution in their section, also linking it to other parts of the book, making the work more of a seamless whole and avoiding the impression of discontinuity that can so easily occur in such volumes.
The broad picture evoked for developed countries is that marks and signs, up to 19th and later 20th century trademark norms and practice, were in some way "badges of origin" and ultimately a means of quality control. But after this, business and trade orientation increasingly distances rights-owners from consumers and raises questions as to whom trademark institutions now effectively assist - rights-owners, actual producers, consumers, trade competitors? Are consumers unduly manipulated? Should the law treat them as "rational sovereigns" or "gullible fools"?
Initially, as goods increasingly crossed national frontiers, national, then international legal instruments such as the Madrid Agreement for the International Registration of Marks (1891), facilitated enforcement by recognized registration, which first provided prima facie evidence of exclusive rights to marks. This exclusivity nonetheless left room for fair competition (viz. Kellogg vs. National Biscuit Co., 1938, for the allowable use of the shape and term of SHREDDED WHEAT).
The volume demonstrates progressively restrictive interpretations of law in European and U.S. courts, as to similarities claimed to be "dilution or blurring" or "tarnishment" of existing marks, seen here to correspond to evolving trading practices and globalization. Whereas, previously, registries and courts more visibly safeguarded the need for unfallacious signs and for non-descriptive and non-generic words, thus also protecting language in the public domain, contributors show them as now faced with applications for signs once probably inadmissible, such as the color orange. It appears that owners' rights to the use of words may only stop "where third party artistic and political speech begins": humor, satire and distinct use won against a dilution claim in Louis Vuitton Malletier SA vs. Haute...
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