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The transition of intellectual property into the World Trade Organization (WTO) trade regime, through the vehicle of the TRIPS Agreement,2 not only took intellectual property protection to a new level of protection and with greater reach globally, it also placed intellectual property in a forum where it would be subject to binding dispute resolution. As part of that process, the Vienna Convention on the Law of Treaties (Vienna Convention)3 would be applied to the interpretation of the TRIPS Agreement provisions in disputes brought to the WTO.4 The Vienna Convention applies to the interpretation of all treaties (and other treaty-related matters) both within and outside the WTO dispute settlement context. Therefore, even prior to the conclusion of the TRIPS Agreement and the formation of the WTO in 1995, the Vienna Convention should have been the mechanism through which international treaties about intellectual property were interpreted by members of other international organisations, particularly the World Intellectual Property Organization (WIPO), and also by national and regional courts and policymakers.
Those nations that seek more extensive protection for trademarks, beyond the levels of protection that are the required minimum standards of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)1 and the Paris Convention for the Protection of Industrial Property,2 utilise free trade agreements (FTAs) to achieve these goals. The TRIPS Agreement anticipated that some members would provide more extensive protection, both because many already did provide a higher standard of protection, even at the time the TRIPS Agreement was signed, and because the United States openly stated that it intended to continue to negotiate for more extensive intellectual property standards in bilateral trade agreements post-TRIPS.
In a 2017 decision, theUS Supreme Court held that constitutional commitments to free expression barred the Patent and Trademark Office from rejecting the registration of 'The Slants' for an Asian rock band, even though the term is understood to disparage Asians. Because we do not agree with the Court’s view that true speech can always correct false speech, we argue that the US can learn from the ways in which New Zealand trade mark jurisprudence protects cultural integrity while ensuring free speech. In so doing, we follow Sam Ricketson’s admonition that common law jurisdictions learn from one another.