10 Wake Forest Intell. Prop. L.J. 215
The concept of trademark regulation is fairly new when one considers the length of time trademark protection has been available. Primarily, trademark law was a common law creature, and the rights given were territorial. There was a noted expansion in trademark regulation with the formation of the World Trade Organization and the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”). TRIPS serves, among other things, as a guideline for trademark use and recognition by the members of the WTO, representing more than 97% of total world trade. To date, this is the most comprehensive and sweeping regulation of trademarks, reaching all corners of the globe. However, there remains a need for expanding this existing regulation.
To understand the argument for extending global trademark regulation, one must initially understand the purpose of trademarks. According to the Lanham Act, the purpose of a trademark is “to identify and distinguish… goods…from those manufactured or sold by others and to indicate the source of the goods.” TRIPS identifies a trademark as “capable of distinguishing the goods or services of one undertaking from those of other undertakings.” The common factor between these definitions is that trademarks are meant to distinguish one’s goods from another’s goods. This appears to be a universally accepted purpose of trademarks that initiates little, if any, argument. However with the globalization of travel, a new purpose presents itself: distinguishing one’s goods from one’s goods. This article explores this argumentative and new approach to the idea of trademark regulation.