The informed user: a step up from the Clapham Omnibus

In proceedings for infringement of a registered Community design,Lewison J considered who is an ‘informed user’ andwhat is the ‘overall impression’ of a design.     

The overlap between registered Community designs and Community trade marks

Legal context: Community trade marks and registered Communitydesigns have co-existed since April 2003. The relevant Europeanlegislation permits some subject matter to be registered undereither or both of these regimes. Key points In the absence of an express prohibition, it wasperhaps inevitable that the owners of distinctive designs wouldconsider registering them as trade marks and, conversely, thatthe owners of certain non-conventional trade marks might takeadvantage of opportunities for cheap and speedy registrationunder the designs system. The ability to obtain registered Communitydesigns and trade marks for the same subject matter is consideredhere. Practical significance A party seeking to protect the designof a distinctive product shape or its packaging may be ableto register it as a Community trade mark where it has missedthe boat for claiming novelty as a registered design, or wherea pre-existing design right is about to expire. On the otherhand, a distinctive and new logo or get-up which needs quickand cheap protection may benefit from being registered as aCommunity design. Neither the rights owners, nor those againstwhom they seek to assert their rights, should accept the validityof a registered Community design without question since thereis no substantive examination procedure. However, where valid,it can provide a powerful alternative to a trade mark and auseful additional weapon against unfair competition.     

注册商标的使用及其管理

本文认为 ,现行商标法及其实施细则由于立法认识上的失误及疏忽 ,在规定关于注册商标的使用及其管理方面存在诸多缺陷和不足 ,在实践当中造成不良后果。因此 ,如何规范地界定注册商标使用的内容是真正发挥注册商标的基本功能 ,实现其经济目的的法律保障。在完善注册商标使用的管理制度方面 ,应凸现商标权这一民事权利的私权本质 ,围绕商标权的取得、行使及保护等方面作出科学规定 ,从而完善我国商标法律制度。     

Post-sale confusion

Legal context: Recent case law has established that post-sale confusion isrelevant to determining whether registered trade mark infringementhas occurred under UK law. This raises questions as to whatthat relevance is in practice and as to whether the common lawof passing off should develop accordingly so as to take post-saleconfusion into account. Key points: In this article, the authors review the case law on the relevanceof post-sale confusion to actions for trade mark infringementand passing off. They conclude that U K law does regard post-saleconfusion as relevant to trade mark infringement, provided thatthere is also sufficient similarity on a mark-for-sign basisat the point of sale. They argue that the tort of passing offshould develop in the same way. Practical significance: Brands can be harmed even where there is no confusion at thepoint of sale. The law's development to recognize this providesimportant weapons for brand owners, particularly in the contextof ‘look-alike’ products.     

'Innocent infringement' and the Community unregistered design right: the position in the UK and Ireland

Legal context and Key Points: This article systematically examines ‘innocent infringement’—highlightsits non-uniform nature and summarizes defence it offers as toliability and/or remedies across a range of national UK andIrish IP rights—particularly copyright and design. It considers ‘innocent infringement’ in contextof community unregistered design right (directly applicablein all EC member states under EC Reg 6/2002) and assesses ifit affords defence to liability or financial remedies—suggestsanswer depends on meaning and effect of Article 19 (2), Article89 (Reg 6/2002) and consideration of; the harmonizing effectof the Enforcement Directive (2004/48/EC); the ensuing respectiveUK and Irish IP Enforcement Regulations 2006; the UK's CommunityDesign Regulations.2005. It concludes: limited scope of Reg 6/2002 indicates ‘innocentinfringement’ affords neither defence to liability nora limited defence to damages, but contrasts the role of discretionaryremedy of account of profits, and nevertheless predicts UK andIrish Design Courts may seek to justify ‘innocent infringement’offers limited defence to damages. Practical significance: Given that the community unregistered design right, applicableEC wide, is useful and of interest in many commercial fields(eg fashion, furnishings, etc.), which require short-term protectionagainst copying by over enthusiastic competitors, understandingthe status and effect of ‘innocent infringement’on liability and financial remedies is important.     

解析商标权与商标权之间的权利冲突

商标权与商标权之间的权利冲突 ,源于权利产生过程的违法性或者权利人行使权利的违法性。在判断商标之间的权利冲突是否现实存在以及怎样解决权利冲突时 ,既要依法尊重解决权利冲突的一般原则 ,又要充分考虑商标的特点和作用 ,不能脱离市场经济秩序和消费者的合法权益去孤立地保护某种标识 ,也不能以商标注册申请是否在先作为判断商标权是否属于在先权利的唯一标准 ,此外还不应绝对地排除商标的并存。     

Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC

The author discusses the interaction between international andnational law in determining whether a case is admissible fromthe viewpoint of complementarity (Article 17 of the Statuteof the International Criminal Court) and with regard to theconcept of ‘interests of justice’ (Article 53 ofthe same Statute). Complementarity does not separate nationalfrom international criminal jurisdiction; nor does it put themin conflict with each other — rather, it favours the aforementionedinteraction. In addition, the concepts of ‘ability’and ‘willingness’ tend to ensure an indirect harmonizationof national criminal systems around common international criteria.As for reliance on the notion of ‘interests of justice’when determining whether to initiate proceedings, accordingto the author, Article 53 envisages a compromise between prosecutorialdiscretion and strict legality, thereby enshrining a hybridizationbetween various national traditions. The author notes that thedecision to open investigations should be objective and foreseeable;to this end, she suggests some general criteria, which are intendedto serve as guidelines for establishing whether, in a specificcase, the interests of justice warrant the initiation of proceedings.     

Design protection for technical products

Legal context. The shape and the function of a product are oftenclosely related (‘form follows function’) whichopens the way for double protection of novel features by a patentand a design. The simultaneous application for both rights canbe done in a fast and cost efficient way by using the figuresof the patent application for the design registration. Key points. With this in mind, the design registration may notcover the novel features in its broadest terms, since designlaw does not apply to ideas, concepts, or methods. However,the design provides protection for a concrete embodiment andthereby offers some relief for a patent applicant in need ofimmediate action against copying. Although, certain conditionshave to be observed where simultaneous protection is sought,there is no doubt that a patent covering an invention in itsgeneral form and a registered design protecting a specific embodimentof the invention may coexist with no mutual negative effectto their respective validity. Practical significance. Having an enforceable protection rightfor an embodiment of an invention at hand a long time beforethe corresponding patent is granted is a valuable asset in anIP portfolio. The additional costs incurred by a design registrationare insignificant in comparison with the costs for the patent.     

Stress Appraisal and Attitudes Towards Corporal Punishment as Intervening Processes Between Corporal Punishment and Subsequent Mental Health

The purpose of this research was to examine the role of within-person processes in determining the impact of parental corporal punishment on mental health in older adolescents. A stress appraisal scale specific to corporal punishment and an attitudes towards corporal punishment scale were developed for this study and examined as determinants of the impact of corporal punishment on psychological and parent-child relationship outcomes. Results of this research indicated that participants’ evaluations of their parents’ corporal punishment as threatening was more important than the actual frequency of corporal punishment in determining adolescent mental health, and were significantly associated with the mental health measures after controlling for other elements of parenting. In addition, the mother-child relationship was more adversely impacted by mothers’ corporal punishment when adolescents evaluated that punishment negatively. These results enhance theoretical models describing intrapersonal processes through which subabusive parental violence affects children and can help to improve intervention efforts aimed at reducing negative outcomes associated with corporal punishment.     

Nomadic Territories: A Human Rights Approach to Nomadic Peoples' Land Rights

In most societies nomadic peoples face discrimination. At theheart of this discrimination frequently lies the crucial issueof property in land. The sharing of lands between nomads andsettled agriculturalist societies has often led to violent confrontation.Access to land is a determining factor for many nomadic peoplesas whether or not nomads have access to land will determinethe survival of their mobile lifestyle. Historically nomadicpeoples have not been regarded as having any rights to landbecause their nomadic lifestyle was not considered to fulfilthe criterion of ‘effective occupation’ of the land.By exploring the evolution of international law regarding nomadicpeoples’ land rights, this article analyses how humanrights law could provide nomadic peoples with rights to usetheir lands. Ultimately, this article argues that under thebanner of international human rights law, nomadic peoples aregaining the right to live on their land in their traditionalways through the gradual establishment of a specific corpusof law dedicated to the rights of nomads.     

The Vessel Hull Design Protection Act of 1998: is it still afloat?

Legal context. The Vessel Hull Design Protection Act (‘VHDPA’or ‘Act’) is a unique form of industrial designprotection under US law, part of the Digital Millennium CopyrightAct 1998. Congress provided this sui generis form of protectionin response to the Supreme Court's decision in Bonito Boatsv Thunder Craft Boats, Inc. This statute has been underutilizeddue to the difficulty in proving infringement, as unintendedconsequences were caused by the way ‘hull’ was originallydefined under the Act. A bill is pending in Congress that addresseshow a ‘hull’ is defined, eliminating any inclusionof ‘deck’ features, when passed, registrants shouldbe able to pursue infringers with greater success. Key points. The recreational boat manufacturing industry hasbeen plagued by low-cost boat makers who think nothing of takinga competitor's boat hull design, and using it as a ‘plug’to make a casting for their own unauthorized manufacturing use,a counterfeiting technique known in the trade as ‘splashing’a hull. In the eight years since enactment, the boating industryhas generally overlooked this form of intellectual propertyprotection due to the difficulty in proving infringement—thatis likely to change soon. Practical significance. The Act includes the right to excludeothers from making, having made, importing, offering for sale,or using in any trade, any boat hull embodying the protectedhull design. The Act provides compensatory recovery for damagesas well as injunctive relief. The newly revised Act has thepotential to provide a low-cost and effective form of intellectualproperty protection for recreational boat manufacturers whobuild hulls from moulded fibreglass or similar materials.     

The new outlawry and Foucault’s Panoptic nightmare

Michel Foucault seized upon Bentham’s “Panopticon” prison design as a metaphor to illustrate the mechanisms of social control in post-industrial society. In our recent rush to invent alternatives to incarceration, we have created a new and burgeoning class of outlaws, persons for whom privacy is not a legally cognizable right. Combined with Supreme Court decisions finding surveillance of even innocent citizens to be constitutionally benign, our well-intentioned efforts to reduce prison populations are close to bringing Foucault’s metaphor to literal reality.     

Adverse Possession and Article 1 of the European Convention

In the post-human rights era the question has arisen on several occasions as to whether the automatic and arbitrary termination of the registered owner’s title through the common law and statutory principles governing adverse possession of land is contrary to the Article 1, Protocol 1 of the European Convention. The matter fell to be decided in J.A. Pye (Oxford) Ltd v United Kingdom ([2005] 3 EGLR 1) where the European Court of Human Rights held that the automatic termination of a registered owners title after 12 years possession was indeed a violation of Article 1, Protocol 1. More recently, the decision of the European Court has been overturned by the Grand Chamber of the European Court of Human Rights where the Grand Chamber has held that a squatters’ right to another persons land are not disproportionate (J. A. Pye (Oxford) Ltd and Another v United Kingdom, The Times, October 1st 2007). This short article examines the decision of the Grand Chamber.

登记物与非登记物之区分的法律意义

不动产、动产之划分的基础性地位,因登记动产的出现而发生动摇。登记物、非登记物之划分,可以作为最基本的物的分类,成为物权体系展开的新基础。立法论上,可采取嫁接模式,规定登记动产适用不动产规则,以实现登记物内部规则的基本统一。登记动产之外的普通动产作为非登记物,仍适用原有的动产规则。     

Questions referred to the ECJ regarding scope of protection against allusive packaging and use of registered marks on comparison lists

The Court of Appeal is referring a number of questions to theECJ, including questions concerning the scope of protectionfor registered trade marks and the meaning of ‘unfairadvantage’ for the purposes of the Trade Marks Directiveand the Comparative Advertising Directive.     

Disagreement over 'relevant sector' when determining prior art under the Community design right

This case concerns assessment of the relevant product sectorto determine what constitutes prior art when examining whethera design, having previously been ‘made available to thepublic’, would not qualify for protection as a Communityregistered design for lack of novelty.     

侵犯注册商标权犯罪问题研究

侵犯注册商标权犯罪是当前实践中比较突出的问题 ,正确理解和认定刑法规定的三种侵犯注册商标权犯罪对于运用刑法惩治当前制售假冒伪劣商品犯罪具有重要的理论指导意义。本文认为 ,注册商标罪只能由直接故意构成 ;对“明知”的理解应区分存在论意义上和司法推定层面的不同 ;应明确“销售金额”、“违法所得数额”、“非法经营数额”各有不同的内涵     

Trade marks are 'possessions'--but applications are not (yet)

In its decision of 11 October 2005 the European Court of HumanRights (ECHR) ruled that a registered trade mark was a ‘possession’within the meaning of Article 1 of the First Protocol to theEuropean Convention on Human Rights. The ECHR failed, however,to extend this level of protection to the particular trade markapplication at issue, thereby leaving the protection of intellectualproperty rights as fundamental rights somewhat incomplete forthe time being.     

Community registered design invalidated by prior registered trade mark

In a series of four decisions, the OHIM Invalidity Divisionhas declared invalid Community registered designs 00016245-0001to 0004 in the light of international trade mark registration810732, designating various European Union Member States. Thisis believed to be the first time that a Community registereddesign has been declared invalid on the basis of an earliertrade mark right.     

Spanish court rules in 'Accessorize' trade marks case

The Barcelona Court of First Instance No. 1 found in favourof the claimants, owners of the famous registered trade mark‘Accessorize’ in their action for trade mark infringement,trade mark cancellation, unfair competition, and damages inrespect of the use by the defendants of the Accessori, Mr Accessoriand Accessori trade marks.