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Hastings International and Comparative Law Review

Abstract

Trademarks are inherent features of transnational business transactions. From a trade perspective, a trademark is used by a business as an identification sign to distinguish its goods or services from those of its competitors. Trademarks are also a form of investment as they are valuable business assets; they can be sold or licensed. This paper provides a comprehensive analysis of the international economic rules that apply to transnational business activities requiring trademark protection. It answers the key question: What is the role of trade and investment treaties in ensuring trademarks are duly respected? The paper demonstrates that some trademark infringement is simultaneously covered by both TRIPS and IIAs. The WTO case law on the trademark is reviewed with a particular focus on the substance of the case " United States -Section 211 Omnibus Appropriations Act of 1998." Then, the paper expands the analysis to investigate the role of investment treaties that often include intangible assets (and hence trademark) as a form of protected foreign investment, while the investor-state mechanism allows foreign companies to promptly sue host states. This paper explores recent regulatory and litigation experiences to show that the fair and equitable treatment and expropriation provisions typical of investment treaties offer grounds for economic operators to have their rights protected under IIAs.

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