Valued varieties

European Community Plant Variety Protection By Gert Würtenberger,Paul van der Kooij Bart Kiewiet and Martin Ekvad, 2006, Oxford:Oxford University Press Price: £95, Hardback, ISBN: 0-19-928616-7.pages 311

This book provides an up-to-date overview and commentary abouta truly EU community IP system: The European Community VarietyProtection Right system (CPVR, based on Council Regulation 2100/94). Plant variety protection (PVP) was formerly considered a rather‘exotic’ field of IP law, used only by     

Coexistence in Community trade mark disputes: conditions and implications

Legal context. A defence based on coexistence has no legal basisin the Trade Mark Directive or in the Community Trade Mark Regulation.Still, a practical approach to Community trade mark conflictsrequires attention to the situation in the marketplace whereconflicting marks may be shown to coexist without any currentconfusion or dilution being reported. Key points. Trade mark coexistence may sometimes be persuasive,the strict requirements being laid down by the Community courts.Through a detailed review of the case-law of the Community courtsand OHIM's Boards of Appeal, this article explains the conditionsfor and the consequences of proving the coexistence of the conflictingmarks in cases based on likelihood of confusion or dilution. Practical significance. Consideration must also be given tothe effects of third parties' neighbouring marks which may diminishan earlier mark's distinctive character. Accordingly, this articlefurther addresses the issue of whether the scope of protectionof a mark may be damaged by the use of later marks in the lightof the ECJ Judgment in the preliminary ruling Case C-145/05Levi Strauss v Casucci Spa.     

Towards the End and Beyond: The "Almost" Referral of Bagaragaza in Light of the Completion Strategy of the International Criminal Tribunal for Rwanda

The Bagaragaza case was the first at the International CriminalTribunal for Rwanda in which the referral of an accused to anational jurisdiction was discussed. Such a referral may bemade at the discretion of a Trial Chamber designated by thePresident, if the Chamber satisfied itself that the Accusedwill have a fair trial and that the death penalty will not beimposed or carried out. The referral can be made to three differentStates: the one where the accused was arrested, the one werethe crimes were committed and the one which has jurisdictionand is willing and adequately prepared to hear the case. Inthe Bagaragaza case, the request for referral was dismissed,because the Referral State in question, the Kingdom of Norway,has no provision for genocide in its penal law. This paper discussesthe referral mechanism and the role it plays in the Tribunal'sambitious completion strategy. An analysis of the Bagaragazacase will show how this mechanism has actually been applied,concluding that the Tribunal rightly resisted the pressure toabide by the completion strategy and chose substance over form.After the Tribunal's closure, two important questions will facethe international community: (a) Where will convicted and acquittedpersons be relocated? (b) Has international criminal justicebeen promoted at the expense of long-term peace and stability?     

Community Wise: Paving the way for empowerment in community reentry

Theoretical approaches traditionally applied in mental health and criminal justice interventions fail to address the historical and structural context that partially explains health disparities. Community Wise was developed to address this gap. It is a 12 week group intervention informed by Critical Consciousness Theory and designed to prevent substance abuse, related health risk behaviors, psychological distress, and reoffending among individuals with a history of incarceration and substance abuse. This paper reports findings from the first implementation and pilot evaluation of Community Wise in two community-based organizations. This pre–posttest evaluation pilot-tested Community Wise and used findings to improve the intervention. Twenty-six participants completed a phone and clinical screening, baseline, 6- and 12-week follow-ups, and a focus group at the end of the intervention. Measures assessed participants' demographic information, psychological distress, substance use, criminal offending, HIV risk behaviors, community cohesion, community support, civic engagement, critical consciousness, ethnic identification, group cohesion, client satisfaction, and acquired treatment skills. Research methods were found to be feasible and useful in assessing the intervention. Results indicated that while Community Wise is a promising intervention, several changes need to be made in order to enhance the intervention. Community Wise is a new approach where oppressed individuals join in critical dialogue, tap into existing community resources, and devise, implement and evaluate their own community solutions to structural barriers.     

TRIGGERING INSPECTIONS EX OFFICIO: MOVING BEYOND A PASSIVE EU CARTEL POLICY

The implementation of leniency programs is considered a successboth at a EU Community level and in individual member states.The paper discusses the value of ex officio investigations forcartel detection in light of leniency and complaint-based cases.Are ex officio investigations still needed? Should a competitionauthority concentrate its scarce resources exclusively on theprosecution of leniency or complaint-based cases or follow aproactive market monitoring policy? It is argued that investigationstriggered ex officio are an important complementary enforcementtool to the other passive instruments available to a competitionauthority. A bottom-up methodology for triggering inspectionsbased on economic criteria is presented allowing for a moreproactive cartel policy.     

Implementing Community obligations in the realms of intellectual property

Legal context. The various Acts of Parliament governing UK intellectualproperty law have been significantly amended to give effectto Community law. This article discusses the powers used bythe Secretary of State to implement Community obligations andthe Court of Appeal's recent clarification of the scope of thosepowers. Key points. This article describes the concerns expressed bysome commentators on the scope of the powers under the EuropeanCommunities Act 1972 and the key cases on that scope, includingOakley v Animal. The article uses the implementation of performers'moral rights as an example of where going beyond strict Communityobligations is necessary. Practical significance. The article will be useful to anyoneconsidering the validity of the changes made to domestic law,including amendments to primary legislation, to implement Directivesor other Community obligations.     

Introduction

We are pleased to present the inaugural issue of the Journalof Competition Law and Economics (JCLE), which the Oxford UniversityPress will henceforth publish quarterly. The aim of the JCLEis to publish cutting-edge academic     

A primer on US antitrust claims against patentees under Walker Process

Legal context: In the wake of two recent cases from the Federal Circuit onthe subject, this article provides an introduction to the WalkerProcess doctrine under US law. Under the doctrine, a patenteewho knowingly enforces a patent procured by intentional fraudon the patent office may lose its immunity to antitrust claims,should it act to enforce its patent. Key points: Walker Process fraud refers to a knowing and deliberate fraudperpetrated on the patent office as opposed to mere acts ofinequitable conduct. Proving that a patent applicant engagedin Walker Process fraud does not by itself prove liability foran antitrust violation. The accused infringer must still provethe individual elements of an antitrust claim. Antitrust claimsbased on Walker Process fraud require significant time and resourcesto litigate. Practical significance: With the allure of mandatory treble damages and attorney's fees,antitrust claims based on Walker Process fraud can serve asa potent counterclaim for an accused infringer's arsenal. Butthe legal requirements and resources needed to successfullylitigate these claims to a conclusion may temper their effectivenessfor the typical patent-infringement suit.     

Inter Partes Proceedings and the Reform of the Community Trade Mark Implementing Regulation

Legal and practical context. Commission Regulation 1041/2005of 29 June 2005, which amends the Community Trade Mark ImplementingRegulation, entered into force on 25 July 2005. Substantialamendments are brought to inter partes proceedings, that isoppositions and applications in revocation or in invalidity,and appeal procedures. Key points. The rules governing the substantiation of the earlierrights and time limits are now stricter. Also, the new regimeaims at circumscribing the consequences of the rather broadinterpretation which the Court of First Instance gave over thelast two years to the notion of functional continuity betweenthe opposition division and the Boards of Appeal. Practical significance. The authors analyse the new provisionscontained in the Community Trade Mark Implementing Regulationin the light of the latest case law of the Court of First Instance,in order to provide practitioners with a simplified guide.     

In Person

Arnaud Folliard-Monguiral is a lawyer in OHIM's Industrial PropertyLitigation Unit. He is the regular contributor, with David Rogers,of the JIPLP annual Community trade mark case law round up.JIPLP managed to catch up with him for long enough to ask afew questions... How did you first become interested in IP? When I was finishing my law studies in the early 90s, IP wasbeing revolutionized     

The inchoate nature of community policing: Differences between community policing and traditional police officers

Over the past 20 years, police departments across America have adopted a community—or problem-oriented—policing philosophy. Community policing has not been implemented wholesale, however. Most departments have assigned some officers to community policing roles but kept the majority in traditional motorized patrol assignments. Pertinent literature suggests that these two groups do not see eye to eye on their respective roles and duties. In this study, work-redesign theory is used as a conceptual framework to explain officer functioning in both community policing and traditional motorized policing settings. Findings indicate key similarities between community policing officers and officers assigned to traditional motorized patrol, despite differences in job satisfaction, perception of impact, and policing style.     

The internal market and the grand exception

The Oxford Encyclopaedia of European Community Law The Lawof the Internal Market By A.G. Toth, 2005, Oxford: Oxford UniversityPress Price: £155.00, Hardback, ISBN: 0-19-825600-0   This second volume of the Oxford Encyclopaedia appears somefifteen years after the first volume, which dealt with InstitutionalLaw. A third volume is projected which will cover CompetitionLaw. Given the excellence of the first two volumes, one hopesthat we will not have to wait as long for the final instalment.An update of the     

Wielding Occam's Razor: Pruning Strategies for Economic Loss

The English Court of Appeal is currently faced with three analyticallydistinct approaches to the question of when one party owes anothera duty of care in respect of her economic interests, all ofwhich bear the authority of the House of Lords. Unable to choosebetween them, it has recently adopted a fourth approach combiningwhich combines them, in the apparent belief that the combinationwill eradicate any individual deficiencies. Against the backgroundof a recent case, the author argues that this is a holding strategyat best and methodologically deficient. He also challenges thecontinuing lip-service paid by courts to models of liabilitybased upon ‘assumptions of responsibility,’ examiningand criticising the causes of their persistence in the law inthe face of widespread academic criticism. Instead, the authorargues, the House of Lords should now clearly endorse a singlereasoning strategy to economic loss cases based on the three-stageapproach in Caparo Industries v Dickman. Properly understood,this approach offers the best prospect of facilitating consistentand transparent decision-making in the longer term.     

The Role of Western Religious Values in Peacemaking for Divorcing Families

Peace (wholeness and integrity) is to be sought as the highest goal in the divorce process, affecting not only the divorcing couple but their family and community as well. The value of “community” found in the three major Western religious traditions suggests that more than just the immediate family should be involved in crafting divorce settlements and that the involvement of clergy may aid in the divorce process, especially in providing rich religious metaphors and exempla to promote peaceful negotiations. Other religious values such as “humanity in the divine image,” “love,” and “the fullness of time” can be useful in working with the divorcing couple to allow their stories to be told, provide time to sort out their complex emotions, and help reduce the impulse to see the other solely as an enemy to be eliminated in battle. “Sin and atonement” can serve an important role in restorative justice, while “the delayed arrival of the divine kingdom” provides a reasonable way to assess what determines success, both for the divorcing couple and for divorce professionals.

Key Points for the Family Court Community:
• Religious values found in Judaism, Christianity, and Islam can be consciously utilized to help divorcing couples separate more peacefully.
• Providing opportunities for each spouse to be fully heard and seen is a crucial component in helping to bring more peace into the divorce process.

     

The Amicus Brief Issue at the WTO

The near-exclusive attention which many commentators have givento the importance of analysing the amicus brief issue in termsof transparency and accountability, often accompanied by accusationsof a lack of democratic status on the part of the countriesthat have objected to the admission of such briefs, is misplaced.The World Trade Organization (WTO) Members that have objectedmost strenuously to amicus brief submissions have been developingcountries—ironically, the most vocal proponents of anindependent, strong "trade court". Why should developing countriescomplain if the issue is really one of strategic and politicalinterests? After all, a "court" that takes it upon itself toaccept amicus briefs despite the protestations of the majorityof the WTO Membership is, in this sense, a "strong court". Whatthis article aims to provide is a very close account of theviews of the Members in the political debates on this issue.On that basis, it seems that abstract arguments based on thepositive role that non-governmental organizations (NGOs) canplay are unlikely to assuage developing countries' concerns.They only address the supposition that developing countriesare morally mistaken in their political views, or are sufferingfrom a false consciousness of the (real) threat of trans-boundarynon-governmental moral entrepreneurs. Instead, the concernsof these and other Members have to do with estimations aboutthe likely impact of WTO Appellate Body activism on the misapplication(and consequent unpredictability) of negotiated trade rules.These concerns should be taken seriously, for they go to theoriginal intent at Uruguay of having an impartial body whichwould impartially apply negotiated rules, with an eye towardsthe avoidance of political controversy. According to this view,fundamental gaps in trade regulation should be resolved by theMembers—not the Appellate Body.     

The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe

The recent case of Bosphorus Airlines v Ireland provided theEuropean Court of Human Rights (ECtHR) with an opportunity torefine further its relationship with the EU. In particular,the ECtHR was called upon to clarify when States could be heldresponsible for actions taken under the banner of the EU. Thisarticle examines the status quo prior to the Bosphorus judgment,and then scrutinises the judgment itself, focusing particularlyon the use and scope of the doctrine of ‘equivalent protection’to determine State responsibility. The doctrine as outlinedin Bosphorus is applied to some likely scenarios involving EUaction and its relative merits and disadvantages are discussed.The article also briefly addresses the further global implicationsof the judgment, namely for the legal accountability of theUN Security Council and the ongoing issue of responsibilityof international organisations under international law.     

Exemplary Damages in Equity: A Law and Economics Perspective

In Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, the NewSouth Wales Court of Appeal held that exemplary (or punitive)damages are not available for breach of fiduciary duty or otherequitable obligation. The decision runs counter to authoritiesin Canada, New Zealand and some U.S. states. Punitive (exemplary)damages is a hotly debated topic in the United States and ithas attracted considerable interest among law and economicsscholars, particularly in the tort litigation context. Thisarticle analyzes the Digital Pulse case from a law and economicsperspective. Polinsky and Shavell (among others) argue thatthe function of punitive damages is to achieve optimal deterrencein cases where the probability that the plaintiff will discoverand successfully litigate the defendant’s wrongdoing isless than 1. Given the high costs of monitoring fiduciary behaviour,it might be tempting to conclude that exemplary damages shouldbe routinely awarded for breach of fiduciary obligation. Thearticle explains why this view is wrong. On the other hand,given the availability of gains-based remedies (the accountof profits and the like) for breach of fiduciary obligation,it might be tempting to conclude that exemplary damages arenever justified in fiduciary cases. The article explains whythis view is wrong too. The main conclusions are that: (1) exemplarydamages should be available for breach of fiduciary duty andthe like, but not as a matter of course; and (2) exemplary damageswere probably not warranted in Digital Pulse itself.     

Repairing the Divide

Abstract

In this paper, we use responses from a 1998 Office of Community Oriented Policing Services (COPS) and Bureau of Justice Statistics (BJS) survey to investigate how the concept of community policing and the individual strategies associated with this public safety policy shape African American, Latino, and white perceptions of police officers. Community policing exerted differential effects on Latino, African American, and white perceptions of the police. Despite intentions to improve police-minority relations, community policing most strongly and positively affects whites' perceptions of neighborhood police. Both the public pronouncement and actual tactics of community policing had a greater impact on white perceptions of the police than they did for Latino and African American views toward the police, even though community policing also fulfills its promise to reduce tensions between the police and racial and ethnic minorities. Understanding the differences among African Americans, Latinos, and whites is critical to the evolution of community policing policies. Recognizing the importance of these differences, instead of adopting a “one size fits all” approach, puts the police and community members in a position to better realize the potential benefits of community policing.     

Community perceptions of a public sex offender registry introduced in Western Australia

Abstract

Publically accessible information about sex offenders through an online registry of sex offenders has been a polemic issue for governments, police and the wider community with debate largely driven by community expectations of police ensuring the safety of children and women from sexual predators. In October 2012, Western Australia became the first and currently only state or territory in Australia to allow public access to a three tiered register via the Community Protection Website (CPW) that would be monitored by West Australian Police. The introduction of this website triggered significant debate across the country. A survey was developed to capture the opinions of members of the public who had accessed the online registry to understand their views of the online tool and its purpose as a form of community safety. Findings from the survey reveal that the community lacks understanding of the prevalence of child sexual abuse and the fact that a child is more likely to experience sexual victimization within the family unit. There is also a need for greater community education and awareness about the purpose and limitations of the CPW as many believed that all sex known sex offenders are publicly registered, therefore creating a false sense of security.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.