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Trademark Harmonization: Norms, Names & Nonsense

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Abstract

The old territorial understandings of jurisdiction need to be reconsidered when attempting to arrive at an international standard for trademark protection. Because goods flow in a market, which has become truly international, the laws that protect the indications of source or origin used on or in connection with the sale of these goods and services is also international. Truly, as long as the world community slavishly adheres to territorial justifications for sovereignty and jurisdiction, "harmonization" of trademark laws will be impossible. In fact, the universality of markets for trademark bearing goods was one of the original objectives relied upon in the creation of the Lanham Act soon after World War II. The argument made then was that because goods traveled in one national marketplace, a unified system of trademark laws was necessary to avoid inefficiencies that would be passed on to consumers as manufacturers tried to compete in 50 different jurisdictions under 50 separate trademark laws. Current worldwide initiatives to harmonize trademark laws are perfectly analogous to the arguments made to create one, nation wide system of trademark law in the United States in 1947. Therefore, I offer the following comments not necessarily as a completely contrary point of view, but rather as a friendly Comment that modestly attempts to provide another view on the important issue of trademark law harmonization.

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In the current global marketplace, liberalization of trade in professional services (“services”) presents one of the biggest challenges and profitable opportunities for the international community. Changes in technology and state privatization polices over the past half century have made services the fastest growing sector in international trade. Despite such a transformation, the potential for further innovation and expansion in the services industries is in jeopardy. In response to public policy and regulatory concerns and political pressures to protect domestic jobs and industries, states have adopted a plethora of state-initiated discriminatory and restrictive policies against trade in services. Because existing international legal mechanisms are ill-equipped to resolve these issues, this paper proposes the formation of a unified international legal structure for services as a solution. In advancing this proposal, this paper examines the evolution of United States federalism and its impact on trade liberalization among states and the European Community’s Trademark regime to demonstrate that a harmonized legal system is the optimal framework for responding to changes in the economy and technology - challenges similar to those currently faced by services trade liberalization.
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