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Trademark Law And Theory

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Trademark Law And Theory

A Handbook of Contemporary Research

Graeme B. Dinwoodie , Mark D. Janis

Edited by Graeme B. Dinwoodie, Professor of Intellectual Property and Information Technology Law, University of Oxford, UK and Mark D. Janis, Robert A. Lucas Chair of Law, Indiana University Maurer School of Law, US

Elgar original reference
2008 560 pp Hardback 978 1 84542 602 6
2009 Paperback 978 1 84980 019 8
ebook isbn 978 1 84844 131 6

Hardback £170.00 on-line price £153.00

Paperback £54.00 on-line price £43.20


Series: Research Handbooks in Intellectual Property series

Available as an eBook for subscribing libraries on Elgaronline.

For individuals at paper price on Google ebooks and

Other eBook partners.

‘All students, young and older, in the burgeoning field of trademark law, whether interested in domestic aspects only or those in the broader international arena, will find a lot to catch and hold their interest in this collection of challenging essays by leading international scholars.’
– David Llewelyn, King’s College London, UK

Contents: Introduction Part I: Methodological Perspectives Part II: International and Comparative Dimensions Part III: Critical Issues Index Contributors: G.W. Austin, B. Beebe, L. Bently, R. Burrell, J. Davis, G.B. Dinwoodie, S.L. Dogan, R.C. Dreyfuss, G.E. Evans, A. Firth, S. Frankel, J.C. Ginsburg, E. Goldman, T. Hays, M.D. Janis, A. Kur, M.A. Lemley, C. Long, B. Ong, M. Spence, R. Tushnet, C. Visser

Further information

‘Trademark Law and Theory brings together a global collection of 19 highly-respected scholars and is an excellent resource for practitioners, students, and trademark scholars alike. . . Trademark Law and Theory provides the reader with an excellent overview of the threads of current trademark law scholarship.’
– Leah Chan Grinvald, The IP Law Book Review

‘Boasting an impressive list of contributors, this first edition of Trademark Law and Theory brings together a compilation of well-written and powerfully argued works by leading international academics. The book is certainly one of the most extensive and thought provoking overviews of contemporary trademark law and theory yet to be published. . . Whilst all the contributions share in common their examination of the rapidity of change within trademark systems, the editors should be commended on their generous seasoning of other cross cutting themes throughout the Handbook. . . This fascinating compendium enriches our understanding of the shape, substance, and form of trademark law and theory. . . this Handbook is perhaps a rare exception to the adage that “no book can be all things to all men”. Its broad sweep approach and cross cutting themes enable a range of interested parties, such as policymakers; academics in the fields of marketing, business, consumer psychology; in addition to the usual suspects; to dip in and out of the Handbook as they wish. . . a unique and erudite collection of essays concerning trademark law and theory. . .’
– Odette Hutchinson, Communications Law

‘Trademarks is an area of vital, practical everyday concern, and the idea of producing a volume that brings together the perspectives of 19 thoughtful and experienced legal scholars is a bold and exciting initiative. The present volume does not disappoint and the two editors are to be congratulated on orchestrating an ensemble that simultaneously informs and stimulates. The title is apt: it is truly “contemporary” and is highly theoretical and doctrinal in character, while the interesting choice of the word “handbook” suggests clearly that this is a work in progress, a snapshot at a particular time of the challenging lines of individual research that each contributor to the volume is undertaking. It is a fine addition to a larger series of research handbooks in intellectual property published by Edward Elgar under the series editorship of Jeremy Phillips. . . The editors have done a fine job in presenting this material in such a clear and coherent fashion. . . this is an excellent and rewarding volume of readings that will be of interest to anyone working in the area of trademarks, whether as an academic or as a practitioner. Indeed, for the practitioner it will be of particular value, in that it contains, and opens up, many areas of inquiry that may not always be apparent when working at the coalface of a particular problem. . . For both kinds of readers, the real value of the volume is to have so many different kinds of perspectives brought together within the space of a single volume. . . this is a handsome production: the publishers and editors are to be commended on the clarity and cleanness of the typeface and headings, the thoroughness of the index, and the accuracy of their proof reading. It has also been given a striking and evocative cover.’
– Sam Ricketson, University of Melbourne Law School Australia, European Intellectual Property Review

‘Trademark Law and Theory is a first-rate exploration of the issues that will dominate trademark law in the 21st century. Authors from five continents provide a truly global perspective on the present and future of trademark law. An exceptional collection of contributors and contributions.’
– Robert Denicola, University of Nebraska, US

‘This compendium is an excellent source of writing on all aspects of trademark law and practice by experts from Europe, the United States, South Africa, Singapore, New Zealand and Australia. It will be a stimulating read for lawyers, academics, students and policymakers alike on the present and developing trends in law and policy relating to trademarks as marketing tools and cultural artefacts. The editors deserve congratulation on their concept for the book and their judicious selection of material.’
– David Vaver, University of Oxford, UK

‘All students, young and older, in the burgeoning field of trademark law, whether interested in domestic aspects only or those in the broader international arena, will find a lot to catch and hold their interest in this collection of challenging essays by leading international scholars.’
– David Llewelyn, King’s College London, UK

This important research Handbook brings together a set of illuminating works by the field’s leading scholars to comprise one of the broadest and most far-reaching overviews of trademark law issues. Organized around three areas of inquiry, the book starts by offering a rich variety of methodological perspectives on trademark law. Reflecting the multifaceted nature of contemporary trademarks, contributors have drawn from law and economics, political science, semiotic theory, and history. The Handbook goes on to survey trademark law’s international landscape, addressing indigenous cultural property, human rights issues, the free movement of goods, and the role of substantive harmonization. It concludes with a series of forward-looking perspectives, which focus on trademark law’s intersection with the laws of advertising and free speech, copyright law, cyberspace regulation, and design protection.

Discussing critical future issues regarding trademark protection and its relationship with other social policies, this Handbook will be of great interest to legal scholars, trademark lawyers and law students. It will also be of interest to academics in marketing, business, consumer psychology, and economics

Full table of contents



1. From Communication to Thing: Historical Aspects of the Conceptualisation of Trade Marks as Property
Lionel Bently

2. The Semiotic Account of Trademark Doctrine and Trademark Culture
Barton Beebe

3. A Search-Costs Theory of Limiting Doctrines in Trademark Law
Stacey L. Dogan and Mark A. Lemley

4. Trade Mark Bureaucracies
Robert Burrell

5. The Political Economy of Trademark Dilution
Clarisa Long

6. Fundamental Concerns in the Harmonization of (European) Trademark Law
Annette Kur

7. Substantive Trademark Law Harmonization: On the Emerging Coherence Between the Jurisprudence of the WTO Appellate Body and the European Court of Justice
Gail E. Evans

8. The Free Movement (or not) of Trademark Protected Goods in Europe
Thomas Hays

9. The Trademark Law Provisions of Bilateral Free Trade Agreements
Burton Ong

A. Trademarks and Speech
10. Reconciling Trademark Rights and Expressive Values: How to Stop Worrying and Learn to Love Ambiguity
Rochelle Cooper Dreyfuss

11. Truth and Advertising: The Lanham Act and Commercial Speech Doctrine
Rebecca Tushnet

12. Restricting Allusion to Trade Marks: A New Justification
Michael Spence

B. Limiting the Scope of Trademark Rights
13. Protecting the Common: Delineating a Public Domain in Trade Mark Law
Jennifer Davis

14. Tolerating Confusion About Confusion: Trademark Policies and Fair Use
Graeme W. Austin

15. Online Word of Mouth and its Implications for Trademark Law
Eric Goldman

C. Trademarks and Traditional Knowledge
16. Trademarks and Traditional Knowledge and Cultural Intellectual Property Rights
Susy Frankel

17. Culture, Traditional Knowledge and Trademarks: A View from the South
Coenraad Visser

D. The Edges of Trademark Protection
18. Of Mutant Copyrights, Mangled Trademarks, and Barbie’s Beneficence: The Influence of Copyright on Trademark Law
Jane C. Ginsburg

19. Signs, Surfaces, Shapes and Structures – The Protection of Product Design Under Trade Mark Law
Alison Firth


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