Absolute Bans on the Registration of Product Shape Marks

The trademark legislation of some countries explicitly and absolutely bans the registration of certain product shape marks, namely, the natural shape of the product, functional shapes, and/or aesthetically pleasing shapes. Some view these bans as being inconsistent with Article 6quinquies of the Paris Convention and Article 15 of the TRIPS Agreement. This chapter argues against this proposition. Its thesis is simple: product shape marks are outside the purview of the Paris Convention. Delving into the travaux préparatoires of the Paris Convention, it reveals that the Paris Union members could not agree on a definition of a “trademark,” particularly whether product shape marks could constitute trademarks. As for the TRIPS Agreement, whilst it achieved what eluded the Paris Convention and an international definition of “trademark” is now provided in Article 15(1) therein, there remains a real possibility that this definition does not extend to product shape marks.

The Emergence and Development of Intellectual Property Law in Australia and New Zealand

This chapter provides both an overview of the history of intellectual property (IP) laws in Australia and New Zealand, and pathways into existing and emerging scholarship in this area. It discusses convergence and divergence in copyright, patent and trademark legislation and case law between Britain and these two former colonies, from early colonial experimentation to the long period of closely mirroring UK reforms. In the late twentieth century, both countries developed more distinctive IP laws, and diverged on a range of fundamental questions. In the twenty-first century, trade policy—trans-Tasman and global—has created pressures for convergence, but as the countries have grown apart, more perhaps than many realize, so there is considerable resistance to unifying projects. The chapter closes with a discussion of the different trajectories in how IP and indigenous cultural and knowledge systems interface in Australia and New Zealand.

Brand Protection and the Globalization of British Business

In expanding on earlier analyses of the evolution of multinational business that have drawn from concepts of competition and innovation, this study examines the strategies used by British multinationals, between 1870 and 1929, to protect the global reputation of their brands, which were crucial to their survival and success. Even after the passage of new trademark legislation in 1876, enforcement of trademarks remained expensive, and often firms preferred to negotiate, rather than to prosecute violations. Many trademark imitators were based in the newly industrializing countries of the time—the United States, Germany, and Japan—and were part of the British export supply chains as licensees, franchisees, or wholesalers. British firms responded to infringements by lobbying governments, appointing local agents to provide intelligence, and collaborating with other firms.