Determining distinctiveness in infringement proceedings

In determining the distinctiveness of a trade mark in infringementproceedings, a court must look at the perception of the relevantpublic at the time when use of the infringing sign commenced;an order to cease using the infringing sign may often be appropriatewhere loss of distinctive character derives from the defendant'sactions.     

Validity challenge does not give rise to estoppel in subsequent infringement proceedings

The Court of Appeal has held that opposition proceedings beforethe UK Trade Marks Registry do not give rise to an estoppelpreventing a validity challenge as a defence to later proceedingsfor infringement.     

欧盟跨境刑事取证的立法模式

随着欧洲一体化进程的深入,欧盟及其成员国在打击跨境犯罪和犯罪分子自由流动上存在着共同利益,但要制定一部超越国别的欧盟刑事证据法典依然遥不可期.在跨境刑事取证立法中,欧盟存在着统一规则和相互承认两种立法模式,从现有立法看,后一种模式已成为欧盟立法者的现实选择.在后里斯本时代,欧盟在跨境刑事取证上实现了“超国家”的立法运作,欧盟跨境刑事取证立法存在着两种模式融合的趋势.欧盟的立法经验对中国区际刑事取证立法有重要启示.     

Investigating the uses of mobile phone evidence in China criminal proceedings

Data from mobile phones are regularly used in the investigation of crime and court proceedings. Previously published research has primarily addressed technical issues or provided operational manuals for using forensic science evidence, rather than analysing human factors and the implementation of forensic tools in investigation settings. Moreover, previous research has focused almost entirely on western countries, and there is a dearth of research into the uses of forensic evidence in China. In this study, a review was carried out of court sentencing documents referring to mobile phone evidence in China over the period 2013–2018. Automated content analysis was used to identify the specific evidence types utilised and the sentencing outcome for each case. Results show that mobile phone evidence was used in 3.3% of criminal proceedings. Among various data types mentioned in criminal proceedings, call records sustained as the most frequently used type of data. After which, instant messaging tools (e.g. WeChat) are an increasing proportion of all mobile phone evidence, from 1% in 2015 to 25% in 2018. For cases that utilised mobile phone data, the analysis of instant messaging and online transaction tools is routine, with little variation in the use of each application (WeChat, Alipay, QQ) for investigations of different types of crime. However, in the majority of criminal cases, mobile phone data function as subsidiary evidence and posed limited impacts on verdict reached. The current findings indicate that a large amount of mobile phone evidence was transformed into other evidence formats or filtered out directly before court proceedings.     

The use of neuroscientific evidence in Canadian criminal proceedings

This article addresses the question of how neuroscientific evidence is currently used in the Canadian criminal justice system, with a view to identifying the main contexts in which this evidence is raised, as well as to discern the impact of this evidence on judgements of responsibility, dangerousness, and treatability. The most general Canadian legal database was searched for cases in the five-year period between 2008 and 2012 in which neuroscientific evidence related to the responsibility and recidivism risk of criminal offenders was considered. Canadian courts consider neuroscientific evidence of many types, particularly evidence of prenatal alcohol exposure, traumatic brain injury, and neuropsychological testing. The majority of the cases are sentencing decisions, which is useful given that it offers an opportunity to observe how judges wrestle with the tension that evidence of diminished capacity due to brain damage tends to reduce moral blameworthiness, while it also tends to increase perceptions of risk and dangerousness. This so-called double-edged sword of the biological explanation of criminal behavior was reflected in this study, and raises questions about whether and when the pursuit of such evidence is advisable from the defense perspective.     

我国刑事诉讼中意见证据规则适用的实证分析

实证研究表明,我国法官在刑事诉讼中运用意见证据时存在标准不统一的问题。其主要原因在于,刑事诉讼法针对意见证据采用的“原则＋例外”的体例,使得例外的表述过于笼统。通过实证分析,并借鉴域外意见证据规则的规定,本文主张,只有建立在亲历感知基础上所作出的推断、评论或者猜测,才有可能被采纳为证据使用。因此,应当进一步完善我国现有的刑事意见证据规则。     

The cornerstones of plant variety protection in India

Traditionally, India—with a high proportion of small farmers—hasbeen cautious in granting IP rights in food and living matter.As India is one of the fastest developing countries, both interms of industry and in its population, the plant breedingand farming industry in India may be expected to play an importantrole in coping with these problems, as the government has realized.For this reason and in order to comply with its obligationsunder Article 27 of the TRIPs Agreement, in 2001 India passedthe Plant Varieties Protection and Farmers' Rights Act (PVPAct). The constraint arising out of a market situation which is determinedmainly by traditional rights of farmers, by the size of thefarms and the dependency of a significant section of the availablerural area, requires a system     

证据法的法域范围

法庭科学家和证据法学者所处的是两个不同的世界,就像英国和美国一样,由一种共通的语言划分开来。虽然在一些重要方面彼此关联,但法庭科学和证据法学作为两个独立的学科,有着各自独特的构造和演进,关注不同的问题并运用各具特色的认识论。因此,这两个学科之间存在着自说自话的重大风险。该风险的迹象体现在了法庭科学家与证据法学者之间时常沟通不畅。“证据法”的概念对于法庭科学和证据法学而言均至关重要,且在这两个学科中均被高频地运用。本文通过聚焦“证据法的法域范围”之基础概念讨论,希望造成该学科间冲突的个别成因能够明朗化,并诚挚地期盼这样做能有利于法庭科学与证据法学学科之间更有效地交流。     

Balancing power through law: The state v. the juvenile in delinquency proceedings

A content analysis of Maryland's juvenile court law spanning 1947–1978 posed two questions: (1) Had the state legislature redefined the juvenile court process in the matter of delinquency such that the juvenile received more power resources relative to those of the state? (2) Did the ratio of the state's and the juvenile's power resources diminish to the point of negligibility? Findings suggest that the court process may have been structurally revised without a significant change in the overall relationship of the parties in the process.     

Criminal proceedings and the transformative potential of law: Taking historical experiences seriously

Consideration of counter-hegemonic and transformative strategies should be informed by actual experience with the legal system and by careful attention to the particular features of different types of legal proceedings. Sedition procecutions, the main encounter organized progressive social movements had with the criminal law in early 19th century Upper Canada, are analysed to demonstrate these points. The patterns found in these proceedings provide clues about the dynamics, as well as the limits and potential, of legal struggles through the criminal law.     

Police accountability and the Irish law of evidence

Common law courts have differed on whether and to what extent an exclusionary rule should be used as a tool to impose standards on the police. The Irish courts have pursued an uncompromising approach in this area. Basing themselves on the imperative of upholding the constitutional rights of the accused, they have been willing to exclude relevant and cogent evidence on the basis that it was obtained by the police in breach of those rights. This article locates the Irish constitutional exclusionary rule in the broader context of the role of the law of evidence in police governance. Citing specific examples from the Irish legislation and case law, it shows how recent legislative interventions and some judicial hesitancy have fuelled inconsistent and contradictory trends. It concludes that there is now a pressing need for reflection on the respective roles of the legislature and the courts in this area.     

Beyond evidence: Anticipatory regimes in law

This article lays the groundwork for a new approach to understanding how law engages with the future, based on the social science theory and practice of anticipation. Anticipation, as depicted by an extensive interdisciplinary literature, encourages a shift in attention from the future as a matter solely of probability and effect, to the future as a wider array of possibilities operating on the present. Notably absent from this literature is law. This article offers a framework for analyzing how law mobilizes future possibilities to serve present regulatory purposes, focusing in particular on the role of legal horizons, forms and affect.     

试论证据学原理在医学诊断学中应用

法学证据学是运用证据判断规则来认定客观事实存在的一门法学科学.医学诊断学则是找出疾病存在的证据的医学科学.证据学审查证据的真实性、关联性、合法性,并对证据进行质证的规则.用在医学诊断学上则是对遵循医学科学原则及医生职业道德、依照诊疗程序,全面客观地收集、审核证据并落实证据.如存在充分、必要的证据即可确诊;对证据的收集不全将导致漏诊;而对证据的错误判断则引起误诊.医疗纠纷诉讼中的“举证责任倒置”规则告诫医务工作者必须重视诊疗过程中的证据.     

德国刑事诉讼法中的证据使用禁止

本文从批判性的视角概述了德国刑事诉讼法中关于证据采纳或者说是关于证据禁止的问题。证据禁止区分为非自主性证据使用禁止和自主性证据使用禁止。非自主性证据使用禁止可能是由于公诉中初步侦查时的取证错误导致的。就是否适用非自主性证据使用禁止这一问题,德国司法官会从几个方面加以考虑,例如,犯罪的严重性或者是取证错误的严重性。自主性证据使用禁止是由于侵犯了个人隐私。例如,私人日记不能作为证据使用。     

Choice of law and the home-court advantage: evidence

This paper tests three separate hypotheses about inherent biasesin the application of modern choice of law rules: (1) Brilmayer's1980 hypothesis that such rules camouflage 'pro-resident, pro-forum-law,pro-recovery' biases, (2) Borchers's 1992 hypothesis that courtsdo not consistently apply the principles of the choice of lawrule they claim to be applying, and (3) an economic hypothesis,presented in the paper, that only a 'pro-forum-law' bias isunambiguously consistent with economic efficiency, simply becauseit conserves the resources of the court and bar in the forumstate. I find relatively strong support for the 'pro-recovery'bias of courts, weaker support for 'pro-forum-law' bias, andreject the 'pro-resident' bias. If anything, states retainingthe rigid choice of law rules are more likely to favor theirresidents. Moreover, I reject Borchers's claim that courts donot take the modern approaches seriously. Indeed, in general,they follow Borchers's own predictions.     

Study on copyright infringement of video-sharing websites

If any video-sharing websites, without authorization, directly upload film and television works to a server to be shared by subscribers, and do editing and verification in advance on the infringing videos uploaded by subscribers, it is regarded as “direct infringement.” However, the overwhelming majority of video-sharing websites provide information platforms for subscribers to automatically upload videos, and in such case, how to determine the tort liability of those websites remains ambiguous. The Regulations on Protection of the Right of Communication through Information Network of China impose harsh liabilities on video-sharing websites by incomplete reference to the US “vicarious liability,” consequently hampering the development of normal business. It shall be reasonably identified whether the operator of a website “should have known” there exist infringing videos uploaded by subscribers according to the “Red Flag Test,” in reference to the columns set by the video-sharing website. In condition that a mature and effective filtering technology has been accepted by the market, it shall be taken as the subjective fault for a video-sharing website to refuse shielding the uploading of infringing videos with such technology.     

试论证据学原理在医学诊断学中应用

法学证据学是运用证据判断规则来认定客观事实存在的一门法学科学。医学诊断学则是找出疾病存在的证据的医学科学。证据学审查证据的真实性、关联性、合法性,并对证据进行质证的规则。用在医学诊断学上则是对遵循医学科学原则及医生职业道德、依照诊疗程序,全面客观地收集、审核证据并落实证据。如存在充分、必要的证据即可确诊;对证据的收集不全将导致漏诊;而对证据的错误判断则引起误诊。医疗纠纷诉讼中的“举证责任倒置”规则告诫医务工作者必须重视诊疗过程中的证据。