This paper questions the conventional economic view, still adhered to largely in the law, of a trade mark’s central function as signifying the source of a product (or service) made available for trade in a market, with invented or coined words and phrases accorded priority protection on the basis that they are ‘inherently’ distinctive, i.e. likely to function as ‘trade marks’ in the above sense. Using examples of trade marks adopted for products made available for trade in Britain and coming especially from the Colonies following the establishment of the British registered trade mark system in the late 19th century, the paper posits these marks as (like the brands they denoted) carrying out a range of expressive and communicative functions going well beyond source-identification, responding to the wants and desires of consuming publics. The paper then considers the current treatment of the distinctiveness standard in the UK, US, New Zealand, Canada and Australia, the latter the most traditional jurisdiction still. And it concludes by suggesting that less attention should be paid to a sign’s ‘inherent’ distinctiveness, reflecting a Colonial British idea of protecting the common English language by ruling out directly ‘descriptive’ terms while allowing more subtly allusive ones (including also some foreign language terms with a literal meaning in their place of origin), and more attention should be accorded to assessing the meaning, both literal and more broadly allusive, that a sign may actually enjoy in a modern cosmopolitan society.
Each year the OIPRC hosts a number of leading academics from around the world as part of its Invited Speaker Series. These events typically run from 5:15-6:45pm on Thursday evenings at St. Peter’s College; if the venue or time is different, it will be noted on the Events calendar. The Speaker Series consists of a presentation of about 45 minutes, followed by a Q&A session with the assembled group of academic staff, students (both undergraduate and graduate), researchers, and interested members of the public. Discussion is informal and includes participants from several disciplines, with a wide range of prior knowledge.
Refreshments and snacks are served at the conclusion of the discussion. All are welcome.