Theft by Territorialism: A Case for Revising Trips to Protect Trademarks from National Market Foreclosure

This Note will argue that the “well-known mark” standard of the Paris Convention, which is also adopted by the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS), the North American Free Trade Agreement (NAFTA), and the European Community (EC), is an artifact of an era when markets were circumscribed by national borders and granting a monopoly on a trademark in one country on the basis of its use in another was unreasonable because the likelihood of confusion was minimal. Today, however, the trademark originator’s intent to expand beyond its original market should be presumed. The requirement that an unregistered foreign mark must be well known in the domestic market for it to be protected should be abandoned in favor of an “awareness of foreign use” rule. This rule would be merely the logical result of considering the “likelihood of confusion” in the future instead of the immediate present, because trademarks are valued for their future use. Once we presume an intent to market globally, we can predict that the originator’s markets and the second-comer’s markets will eventually overlap and cause confusion among consumers.