Book Chapter

Rethinking the Relationship between Registered and Unregistered Trade Marks

Robert Burrell

Across Intellectual Property: Essays in Honour of Sam Ricketson | Cambridge University Press | Published : 2020


It is generally assumed that a single theoretical account is sufficient to explain why we protect both registered and unregistered trade marks. Specifically, the need to protect against consumer confusion is said to explain the protection that is afforded to trade marks through both the registration system and through passing off/unfair competition law. Drawing on recent scholarship that sets out to re-examine the role of trade mark registration, this chapter argues that we need to think more seriously about embracing a bifurcated model of trade mark protection, with the two modes of protection underpinned by different justifications and perform different functions. This would allow us to ha..

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