When We Say U.S. TM, We Mean It!
41 Hous. L. Rev. 839 (2004)
46 Pages Posted: 16 Jan 2016
Date Written: 2004
Trademark law is traditionally about the commercial use of words, signs, and symbols. Where once trademark was something of a specialist subject, it –– along with other forms of intellectual property –– now finds itself occupying a greater role in both legal and public consciousness. But, much like many famous brands that find themselves appearing in new and unexpected contexts, trademark-like ideas are being appropriated for new uses.
As nations increasingly see "branding" themselves to be part of their national interest, pressure is growing to create trademark or trademark-like protection for country names, especially online. Although arguments for this new right come in various forms, the most substantial is the one championed by South Africa, which essentially asserts that some online addresses –– amounting to virtual cultural property –– are being expropriated by people who had the good fortune to live in countries that were early adopters of the Internet.
The argument that public international law should give special protection to a new class of virtual cultural property has a certain degree of appeal. It fits within three trends at once: (1) the trend towards recognizing the claims of indigenous peoples to prevent the uncompensated foreign exploitation of their traditional cultural property, (2) the ongoing expansion of intellectual property rights, and (3) the growing recognition of the increasing importance of rights in digital property in general and virtual property in particular. Rather than attempting to survey these three major trends, this short paper takes them largely as given. Instead, this Paper concentrates on identifying to what extent this claim of right is rooted in international law.
Although the claim to control the use of a country name is not utterly without support in international law, this Paper suggests that the claim that governments have a trademark-like right in their country names –– or in particular representations of their country names –– is not grounded in existing concepts of international law, and it also suggests that the case for making new law in this area is ultimately not persuasive.
Keywords: trademark, trademark law, international law, intellectual property, IP, IP law, virtual cultural property
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