A Linguistic Analysis of Trademark Genericization : A Study of the Austrian Walkman Decision

  • SHUDO Sachiko
    Research Center for Advanced Science and Technology, University of Tokyo

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  • 商標の普通名称化問題における言語学的論点 : ウォークマン事件を題材に
  • ショウヒョウ ノ フツウ メイショウカ モンダイ ニ オケル ゲンゴガクテキ ロンテン ウォークマン ジケン オ ダイザイ ニ

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Abstract

This study analyzes linguistic issues involved in legal decisions on the genericization of trademarks. In particular, the Austrian Supreme Court decision on the trademark Walkman is examined. The analysis focuses on the following two issues. First, the generic usage of a trademark is not sufficient evidence to conclude that the mark has become generic. If a person is aware of the trademark status of the word, it is usually possible for him/her to distinguish when the word is being used in its trademarked or generic senses. Secondly, the Austrian decision reasons that the listing of the word in a dictionary is evidence of its genericization. However, such reasoning may not be valid in view of the objectives and the lexicographic principles of a dictionary.

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