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'Unitorrial' Marks and the Global Economy
The early decades of the 21st Century may well become known in the annals of intellectual property development as the period when “everything old is new again.” There is one ancient doctrine that has not yet enjoyed a similar renaissance, despite its clear application to today’s new, global, digital economy. It is the old (and currently discredited) view that trademarks and other commercial symbols are universal in nature. First given credence in early US cases regarding the importation of grey market, or parallel imports, the doctrine of universality was gradually replaced by a view of trademarks as creatures of nation states — pure territorial objects. Such limited view served trade protectionist goals which have been rejected in today’s global environment of comparative free trade. This article examines the newly evolving nature of trademarks as “unitorrial” marks in today’s global, digital marketplace. It contends that this new quasi-universal, quasi-territorial nature demands a re-examination of domestic and international trademark law, including the treatment of famous marks, domain names, geographic indications and grey market imports, and the determination of international fora for enforcement. The article concludes by suggesting areas where changes in treatment must be examined in light of this new “unitorrial” trademark.