A Comparative View of the Law of Trademarked Generic Words

36 Pages Posted: 29 Nov 2010  

Larry Teply

Creighton University - School of Law

Ralph Folsom

University of San Diego School of Law

Date Written: November, 28 2010

Abstract

In this article, the authors compare the approaches of the United States, United Kingdom, Australia, Canada, and New Zealand in handling common problems that arise when providing legal protection to trademarked words. The authors begin with the other countries, analyzing their common law, and discussing the beginning of trademark infringements actions there. In looking at the other countries, the authors evaluate the legal test of genericness, the importance of deception in legal decisions, and the recent statutory developments. The authors then move on to an analysis of the United States approach, mainly focusing on the primary significance test and federal trademark legislation. The remainder of the article is a comparative analysis of the United States with the other countries. The article ends with the conclusion that while there are problems with the United States’ approach to trademarked words, these problems are not as severe as those associated with the approach of the remaining countries.

Keywords: Trademark, generic, infringement, statute, defenses, patent, primary significance, comparative study, litigation, hybrid

Suggested Citation

Teply, Larry and Folsom, Ralph, A Comparative View of the Law of Trademarked Generic Words (November, 28 2010). Hastings International and Comparative Law Review, Vol. 6, No. 1, 1982. Available at SSRN: https://ssrn.com/abstract=1716527

Larry Teply (Contact Author)

Creighton University - School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

Ralph Folsom

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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