3 6 3 Non-Traditional Trademark Protection as (Non-Traditional) Means of Cultural Control © Oxford University Press 2018. Published 2018 by Oxford University Press. 18 Non-Traditional Trademark Protection as (Non-Traditional) Means of Cultural Control Katya Assaf-Zakharov I. Introduction Tis chapter focuses on the protection of non-traditional trademarks, with a specifc focus on its social implications and its interplay with diferent cultural traditions. Te term “non-traditional trademarks” commonly refers to new trademark forms, such as product shapes, designs, or colors.1 Such trademark protection may restrict copying of product elements that are generally not protected, no longer protected, or not protectable with patents, copyrights, or design patents. In turn, this restric- tion can directly afect market competition, as several contributions to the book have specifcally observed.2 In addition, since trademarked products, particularly those produced by high-end brands, are often used as status symbols in social inter- action, protection of non-traditional trademarks can also have signifcant cultural efects. In general, the impact of trademark protection on social interactions has been intensively discussed in the literature.3 Tis chapter outlines an additional perspective by focusing specifcally on “non-traditionality,” that is, inconsistency with traditional values, which the protection of non-traditional trademarks creates. Western jurisdictions hold diferent views on imitation: while the United States (U.S.) legal system normally strives to encourage it, the legal systems of Continental Europe tend to be much more cautious.4 Tis diference has to do with the more 1 See Chapter 1 in this volume 2 See Chapters 10, 11, and 12 in this volume. 3 See, e.g., Barton Beebe, Intellectual Property Law and the Sumptuary Code, 123 Harv. L. Rev. 809, 834 (2010); Katya Assaf, Buying Goods and Doing Good: Trademarks and Social Competition, 67 Ala. L. Rev. 979, 1002–03 (2016); Malla Pollack, Your Image Is My Image, 14 Cardozo L. Rev. 1392 (1993); Nestor M. Davidson, Property and Relative Status, 107 Mich. L. Rev. 757, 804 (2009); Mark P. McKenna, Probabilistic Knowledge of Tird-Party Trademark Infringement, 2011 Stan. Tech. L. Rev. 10, 32–33 (2011); Ann Bartow, Counterfeits, Copying and Class, 48 Hous. L. Rev. 707, 733 (2011); Jeremy N. Shef, Veblen Brands, 96 Minn. L. Rev. 769 (2012); Connie D. Powell, We All Know It’s a Knock-Of! Re-evaluating the Need for the Post-Sale Confusion Doctrine in Trademark Law, 14 N.C. J.L. & Tech. 1 (2012); Matthew Grace, Note: Te End of Post-Sale Confusion, 28 Harv. J.L. & Tech. 263 (2014). 4 Ansgar Ohly, Te Freedom of Imitation and Its Limits—A European Perspective, 41 Int’l Rev. Intell. Prop. & Competition L. 506, 507–09 (2010). OUP UNCORRECTED PROOF – FIRSTPROOFS, Fri Sep 21 2018, NEWGEN Calboli110618LAWUK.indd 363 21-Sep-18 4:11:24 PM