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21 Int'l J. Semiotics L. 1 (2008)

handle is hein.journals/intjsemi21 and id is 1 raw text is: Int J Semiot Law (2008) 21:1-20 DOI 10.1007/s11196-007-9062-0 A Case for Applying the Theoretical Semiotics in the Practice of Trade Mark Law Angus Lang Published online: 14 February 2008 © Springer Science+Business Media B.V. 2008 Abstract The application of semiotics in trade mark law is an interdisciplinary endeavour in its infancy. The author traces its genesis in recent years and situates it within the context of general theoretical approaches, in particular of an interdisci- plinary kind, appearing in the trade mark law literature in the past. The purposes for which such theories are applied, and questions of methodology arising from this, are examined. In particular, it is observed that semiotic theory has, by and large, been used for the purpose of debating legal policy in trade mark law (especially in the United States), and that this has given rise to argument about the extent to which semiotic theory can exert any normative force of its own upon the law. This article offers a different perspective. It is sought to demonstrate the usefulness of theo- retical semiotics in solving trade mark law questions in practice. The author emphasises that this involves no threat to orthodox legal problem-solving meth- odology (whatever one may think of the orthodoxy), and in particular does not require the normative use of semiotic theory. Taking as a starting point the concept of 'trade mark use', and having regard to trade mark law and literature in Europe, the United States and Australia, the author proceeds to demonstrate the proposed approach by reference to some current problems in trade mark infringement. 1 Introduction: The Factual Trade Mark and the Legal Trade Mark The term 'trade mark' can, in general terms, refer to two different phenomena, the 'factual' trade mark and the 'legal' trade mark. The distinction between the two concepts is straightforward but significant for the purposes of considering the application of semiotics in trade mark law. A. Lang (E) New South Wales Bar, Sydney, NSW, Australia e-mail: lang@tenthfloor.org I Springer

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