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Thursday, 24 February 2005

EMERGENT TRADE MARKS


The IPKat received this yesterday from his friend Piter de Weerd of leading Dutch law firm De Postkantoor decision he suggests that: "It might be an idea to borrow some terminology from the field of academic metaphysics and label the Postkantoor doctine as trade mark emergentism. If a mark meets the Court´s criterion and consists of a word composed of elements, each of which is descriptive and there is a perceptible difference between the word and the mere sum of its parts, one could speak of an emergent trade mark". It is hard to say whether the term will sink in, but metaphysician Schmutzer at least does show that trade mark law goes much deeper than is sometimes believed.


No, we're not too sure about what this is either -- but the IPKat
found it on a Google Image search of the term "emergent trademark"

The IPKat, never one to duck even a metaphysical issue, is nonetheless not too sure what this is all about. What, if anything, does a mark's being described as an "emergent trade mark" when the criterion for being one is already coexistent with the criterion of registrability? Comments, please!

2 comments:

Piter de Weerd said...

I've just seen your posting on Emergent Trade Marks (many thanks for paying attention to my suggestion), but it seems that something went wrong: some sentences and words seem to be missing, which gives the posting a very strange overal impression ('what it is all about' is indeed a thought which springs to mind). The idea, more or less jokingly suggested by Olav Schmutzer (just a lawyer, not a real methaphisician, listed under 'people' on www.nautadutilh.com) in an article in a Dutch IP magazine, refers to the somewhat dubious methaphisical theory of Emergentism, which states that something can be more than just the mere sum of its parts (which is of course denied by hardcore scientists). The Postkantoor doctrine follows the same principle: a mark consisting of a word composed of elements, each of which is descriptive of characteristics of the goods or services in respect of which registration is sought, is itself descriptive of the characteristics of those goods or services for the purposes of that provision, unless there is a perceptible difference between the word and the mere sum of its parts. The suggestion to use the term Emergent Trade Mark for marks that fulfill this rather vague criterium of 'perceptible difference' is not too be taken too seriously, but can be useful anyway, for it is much easier to say or write "emergent trade mark" than "trade mark consisting of a word composed of elements, each of which is descriptive of characteristics of the goods or services in respect of which registration is sought but with is a perceptible difference between the word and the mere sum of its parts." Not much more than a matter of terminolgy.

I hope that I've been able to clarify the matter, sorry to have confused you.

Anonymous said...

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