The Colonial Trade Mark Regime: Parallel Rationales, Theories and Frameworks

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Abstract:

This article considers the theoretical framework and underlying core policies informing the colonial trade mark regime, comprising the principles upon which Australian trade mark law was based. The first rationale offered is based on natural law theory and principles of natural rights. The second rationale is a more distinctly utilitarian one. A third and possibly related rationale is that the colonial trade mark regime came about as a result of the furtherance of pragmatic self interest. While all of these rationales remain possible, with the principles underlying the regime not definitively elucidated by the relevant legal archive examined, one thing is clear from this discussion. That is, the colonial trade mark regime was not traditionally intended to protect consumers, as its primary purpose, as conventional wisdom would have it. Rather, there is evidence to suggest the regime was largely enacted with the interests of trade mark owners in mind, protecting their trade and reputation and furthering their colonial commercial interests.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/096157611798456735

Publication date: October 1, 2011

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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