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States must respect the obligations set forth in international conventions whenever legislative measures fall within the ambit of the relevant instruments. It follows that no such duty exists where legislation is not covered by international norms. The question thus arises how to draw the line between those scenarios. Furthermore, it can be asked whether the borderline is a hard and fast one, or whether it is pervious to a residue of basic obligations persisting beyond strictly defined limits. For intellectual property rights, the issue is of relevance in two situations: first, if rights adjacent to intellectual property rights are conceptualised as rights sui generis; and second, if legislation falling within the ambit of international conventions goes beyond the minimum standards prescribed therein. This paper investigates whether and to what extent Paris and TRIPS-Plus legislation, in the form of sui generis rights and over-obligatory standards, actually enjoy dispense from otherwise mandatory commitments.
Before embarking on a discussion of trademark functions, it is appropriate to briefly explore the meaning of “functions” in Intellectual Property (IP) law. Generally speaking, each IP right has an essential function defined by the basic task assigned to it. Thus, patents and copyright incentivize innovation and the creation of new works; trademarks indicate commercial origin. Second, IP rights (IPRs) typically fulfill economic functions that are more varied than the essential ones. Thus, for instance, patents can have the economic function to maximize leveraging power on particular markets, or to attract venture capital. Third, the legal or legally protected functions are determined by the elements of an IP right that a particular legislature has chosen to protect. While the essential functions usually determine the core of the legal protection granted, they do not necessarily confine the scope of the rights conferred. That is, the legal or legally protected functions may go beyond the essential functions, for reasons of policy or convenience. The economic functions typically operate as a catalyst in that process: where a discrepancy is observed between the economic functions and the written law, the legislature or the courts may be motivated to better align the latter with market reality. Of course, that scheme can also be reversed: where the operation of IPRs on the market yields undesirable or detrimental economic effects, legislative steps or judicial practice may be called for in order to bring the legal functions back to basics.