Table of contents
Introduction... 1
Part I Assessing the legal framework and unresolved challenges
1. Making a large universe visually perceptible: the development of non-traditional trademarks in WIPO treaties... 13
2. Non-traditional trademarks: an empirical study... 37
3. Paying the price for admission: non-traditional marks across registration and enforcement... 59
4. Yellow dictionaries, red banking services, some candies, and a sitting bunny: protection of color and shape marks from a German and European perspective... 89
5. Non-traditional trademarks and the Dilemma of Aesthetic functionality... 107
6. Should trademark law protect non-traditional trademarks?... 125
7. Absolute bans on the registration of product shape marks: a breach of international law?... 147
8. What should constitute infringement of a non-traditional mark?... 165
9. Protecting non-traditional trademarks in China... 185
Part II Assessing the impact on competition and culture
10. The protection of (three-dimensional) shape trademarks and its implications for the protection of competition... 203
11. Non-traditional trademarks: the error costs of making an exception the rule... 217
12. Assessing the impact of registering non-traditional marks... 235
13. The economics and management of non-traditional trademarks... 257
14. Non-traditional trademarks in the Pharmaceutical sector.... 271
15. Hands off "My" colors, patterns, and shapes! how non-traditional trademarks promote standardization... 287
16. A clash of culture and commerce: non-traditional marks and the impediment of cyclic cultural innovation... 309
17. Non-traditional trademarks and inherently valuable expression... 337
18. Non-traditional trademarks protection as (non-traditional) means of cultural control... 263

In recent years, the domain of trademark law and the scope of trademark protection has grown exponentially. Today, a wide variety of non-traditional marks, including colour, sound, smell, and shape marks, can be registered in many jurisdictions. However, this expansion of trademark protection has
led to heated discussions and controversies about the impact of the protection of non-traditional marks on freedom of competition and, more generally, on socially valuable use of these or similar signs in unrelated non-commercial contexts. These tensions have also led to increasing litigation in
this area across several jurisdictions.

This book provides an overview of the debate and state of the law surrounding non-traditional marks at the international, regional, and national level. In particular, this book addresses relevant international treaties administered by the World Intellectual Property Organization (WIPO) and the
Agreement on Trade-Related Aspects to Intellectual Property Rights (TRIPS) as well as several regional and national legislations and leading judicial decisions in order to examine current law and practice culminating in critical reflections and suggestions on the topic.