Home International Trademark Law A Background Guide to International Trademark Law

A Background Guide to International Trademark Law

A Background Guide to International Trademark LawThe
concept of territoriality provides the governing principle of international
trademark law. The enforcement of trademark rights in individual nations does
not come under the jurisdiction of international agencies but under local legal
statutes. The key idea behind the various agreements and organizations
responsible for international trademark rights, rather, is harmonization. This
process is geared toward mitigating the limitations of territoriality by
bringing the differing definitions of trademark rights held by various
countries more closely in line with each other.

The observance of territoriality ensured that the earliest laws dealing with
trademark rights were strictly national in scope. With the rapid growth in
international commerce and early development of remote communication which
occurred in the 19th century, industrial and government figures in the developed
world felt an increasing need for some overall framework for international
trademark law. The first move toward such a system came with the Paris
Convention for the Protection of Intellectual Property, which began in 1883. In
respect for the preeminence of territoriality, the Convention delegates agreed
their purpose was “the creation of a union which, without encroaching on
the municipal law of the contracting countries, would lay down a number of
general principles securing the interests of industrial property in the
interior of the country as well as abroad.” Three years later, their
efforts bore fruit in the signing of the first international trademark
agreement by eleven countries. These initial signatory members all hailed from
either Europe or Latin America; despite the United States’ rise as an economic
and social powerhouse at this time, it opposed several of the Convention’s
provisions and accordingly opted out. As of the early 21st century, the Paris
Convention is still in effect as a foundation for international trademark law,
with 173 signatory countries.

Though there is no international trademark law understood as a single statute
dictating enforcement measures and penalties across a broad swath of the world,
international agreements ensure that their signers have essentially the same
understanding of what constitutes a trademark and of what rights are due to its
owners. The World Trade Organization’s Agreement on Trade-Related Intellectual
Property Rights, or WTO TRIPS, for instance, went into effect in January 1995
after a session for debate and negotiation which lasted from 1986 to 1994, in
what was known as the Uruguay Round. Among various agreements on intellectual
property, Article 15(1) of the TRIPS agreement laid out a definition for the
“signs” used in trademarks. International trademark rights are also
guaranteed by the Madrid Protocol, which was adopted in 2004. It is
administered by the World Intellectual Property Organization, an agency of the
United Nations. The Madrid system allows for trademark rights applied for in
the prospective owner’s home country to automatically apply to other nations as
well. The observance of territoriality mandates, however, that complaints for
trademark infringement be made to the specific jurisdictional authorities.

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