Human rights and trade mark rights

Legal context. For some time the UK Trade Marks Registry hasrefused to register trade marks which consists of the name ofa well-known individual. This article examines whether the practiceis permissible, not in the terms of intellectual property lawbut whether it is in contravention of the applicant's humanrights. Key points. Looking at the application of the Human Rights Actin the United Kingdom, the article asks how it could apply toan intellectual property case, concluding that the Trade MarkRegistry is clearly a ‘public authority’ and thatthere are a number of ways in which current practice in respectof well-known individuals could be said to infringe their humanrights. Practical significance. It remains to be seen what the Registry'sresponse will be to such arguments and whether it might in thefuture be possible to obtain protection for the name of a celebrity.     

Rights-based rights

Ronald Dworkin maintains that particular rights, like the right to free speech and the right to own personal property, can be derived from a foundational right, the right to equal concern and respect. This paper questions the tenability of this program for rights-based rights. A right is an individuated moral or political guarantee which confers a specified benefit on each right-holder and which resists conduct that would derogate it. For there to be rights-based rights, both the foundational right and the rights it implies must satisfy this definition. It is doubtful, however, that the right to equal concern and respect should count as a right since the benefits it confers are at best highly controversial and may not be assignable to individuals. But even if we grant that the content of the right to equal concern and respect can be satisfactorily specified, the status of the derived rights remains problematic. The trouble is that the relation between the right to equal concern and respect and the rights it implies parallels the relation between the principle of utility and the rights it may imply. Both of these foundational principles can extinguish derived rights. Consequently, rights dependent on either of these principles are not trumps, and their standing as rights is suspect. I conclude that Dworkin's method of defending rights is inappropriate for the most important of our rights though it may well serve for less critical ones.     

On deriving rights to goods from rights to freedom

This paper examines a particular type of argument often employed to defend welfare rights. This argument contends that welfare rights are a necessary supplement to liberty rights because rights to freedom become hollow when their bearers are not able to take advantage of their freedom. Rights to be provided with certain goods are thus a natural outgrowth of a genuine concern to protect freedom.I argue that this reasoning suffers from two fatal flaws. First, it rests on an erroneous notion of what it is to have a right, neglecting the fact that the exact source of a person's inability to exercise a right is crucial to determining whether that right is being respected. Second, the argument equivocates as to the freedom that rights are intended to protect, sometimes confusing freedom with ability, sometimes confusing not being free with not having other desired things, and sometimes confusing what a person is able to do with what a person is entitled to do.     

Shielding farmers' rights

Legal context: Farmers are integral to the economy of most developing countries.There is currently a broad consensus that farmers, being custodiansof genetic diversity, should be granted rights for their enormouscontributions in identifying and conserving plant genetic resources.Farmers' rights recognize farmers as equivalent to breedersand give a farmer who has bred or developed a new variety aright of registration and protection in similar manner to abreeder. The Indian legislation on plant varieties places thefarmer on a very high footing by entitling him to save, use,sow, re-sow, exchange, share, or sell his farm produce. Key points: Farmers' rights discussed in this article are a collective rightgiven to farmers who conserve biodiversity. Plant varietiesdeveloped by modern biotechnology utilize traditional varietiesand are merely improvements of the breeding carried out by generationsof farmers. Yet little consideration is given to the contributionsof these farmers. Therefore it is essential that both the farmeras well as the breeder is protected where he achieves such geneticimprovements. Practical significance: The farmer's right acts as a countervailing force to the breeder'sright and is a retrospective reward of unlimited duration forthe conservation of plant genetic resources. Though the processof innovation by the farmer may not conform to the strict termsof the distinctness, stability, and uniformity requirement,his products also have definite criteria for the identificationof improved varieties. The pool of genetic diversity now availablewas largely obtained through the efforts of farmers of the pastwho identified, conserved, developed, and bred the now-traditionalvarieties.     

Discretion and rights

Discretion and rights