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Washington Journal of Law, Technology & Arts

Authors

Gwen Wei

Abstract

In Belmora LLC v. Bayer Consumer Care AG, the Fourth Circuit held that a foreign company with no U.S. federal trademark registration for "FLANAX" could nevertheless demand cancellation of its competitor's U.S. trademark for "FLANAX". This holding circumvented Article 6bis of the Paris Convention, a provision which protects trademark owners in signatory countries by way of the well-known mark doctrine. Following Belmora's precedent would allow foreign trademark owners to bypass the U.S.'s existing trademark registration system and so undermine U.S. trademark law's central principle of territoriality. This Article argues that Article 6bis is critical to asserting substantive rights on behalf of foreign trademark owners in the U.S. Part I of this Article reviews the history and common criticisms behind the well-known mark doctrine. Part II balances the doctrine against trademark territoriality and applies its resulting theory to the Belmora decision. Part III reviews theories for reform and argues that where unfair competition law conflicts with a foundational trademark principle such as territoriality, trademark principles should triumph.

First Page

501

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