Evans, Gail E. --- "Substantive trademark law harmonization: on the emerging coherence between the jurisprudence of the WTO Appellate Body and the European Court of Justice" [2008] ELECD 166; in Dinwoodie, B. Graeme; Janis, D. Mark (eds), "Trademark Law and Theory" (Edward Elgar Publishing, 2008)

Book Title: Trademark Law and Theory

Editor(s): Dinwoodie, B. Graeme; Janis, D. Mark

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845426026

Section: Chapter 7

Section Title: Substantive trademark law harmonization: on the emerging coherence between the jurisprudence of the WTO Appellate Body and the European Court of Justice

Author(s): Evans, Gail E.

Number of pages: 27

Extract:

6 Fundamental concerns in the harmonization
of (European) trademark law
Annette Kur*



I. The roots and the upshot
When the European Economic Communities were founded fifty years ago,1
the trademark laws applying in the member countries2 were far from homoge-
neous. Some of those differences were of a rather technical nature, but others
reflected basically divergent attitudes towards the very foundations of trade-
mark law. For instance, from a French point of view, it was taken for granted
that the rights vested in a trademark owner were not essentially different from
those accorded by other intellectual property rights: just as in patent or copy-
right law, the proprietor must be entitled to enjoin any kind of unauthorized
use, no matter for which purpose. In Germany, on the other hand, trademark
law and doctrine were strictly founded on the origin function, which was held
to constitute the sole and mandatory guideline regarding the acquisition as
well as the protection of marks. Based on its common law tradition, the UK3
endorsed still another approach ­ one which was less dogmatic than the
German, and more competition-friendly than the French. And finally, the
Benelux countries added strong new colours to the overall picture when they
enacted a uniform law4 incorporating features like protection beyond the risk
of confusion, which at the time were seen as strikingly modern.5


* Professor and Research Fellow, Department of Intellectual Property and
Competition Law, Max Planck Institute for Intellectual Property, Munich, Germany.
1 The "Treaties of Rome", ...