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This chapter addresses the harmonization of trademark laws, both substantive law and administrative procedures, within different regional organizations. The topic of regional harmonization and procedural integration of laws is relevant in today’s geopolitical and economic framework considering the importance of trademarks for regional trade as well as the relevance of regional organizations as alternative fora for advancing trade and intellectual property (IP)-related negotiations instead of (or in addition to) multilateral negotiations at the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). In particular, this chapter compares four distinct regional organizations in order to highlight different levels of regional harmonization and cooperation in these areas – from full harmonization, including the establishment of supranational rights and supranational institutions ruling on the interpretation of national and regional laws, to less integrated approaches based on the cooperation of national or regional offices regarding trademark registrations, and related administrative procedures.
This chapter addresses the phenomenon of overlapping rights under US law and complements Chapter 25 authored by Professors Derclay and Ng-Loy on the overlap of trademark, copyright, and design protection under several other Common Law and Civil Law jurisdictions. Because the United States does not provide sui generis protection for industrial design, but instead protects design through trademark law (notably by protecting trade dress) and design patents, this chapter focuses on the overlap between trademark and copyright protection.1 The Lalique bottles created for Nina Ricci perfumes, for example, may enjoy both trademark and copyright protection in the United States.2 Similarly, cartoon characters are components of copyrightable works (and in some jurisdictions, may be copyrightable works in their own right),3 but many have also long been registered as trademarks for entertainment services or merchandise.4
This chapter complements the chapter authored by Professors Chronopoulos and Maniatis (Chapter 35) and focuses on the relationship between the principle of exhaustion in trademark law and the free movement of goods in the context of cross-border trade and parallel imports – imports of genuine goods that are not authorized by trademark owners. In particular, this chapter reviews the national and regional policies on trademark exhaustion in selected jurisdictions, namely: the European Union (intended as a group of sovereign countries applying a harmonized trademark law); the United States, Canada, and Mexico, as the three nation members of the North American Free Trade Agreement (NAFTA, soon to be renamed the United States, Mexico, and Canada agreement, USMCA); the members of the Association of South East Asian Nations (ASEAN); the People’s Republic of China; and India.