Proof of use, continuity of functions in inter partes proceedings, and three-dimensional marks: Europe in review

Legal context: This article reviews the recent CFI and ECJ case law on proofof use and continuity of functions in the context of oppositionproceedings as well as the strict approach to three-dimensionalmarks. Key points: Unlike the situation in many common law jurisdictions, the Communitytrade mark regime is not a use-based system. Nevertheless, oncea mark has been registered for more than five years, the rightsthat it seeks to protect may only be enforceable to the extentthat the sign has been used for the goods and services it covers.In the context of opposition proceedings, applicants may callfor evidence that the opponent has actually used the mark onwhich the opposition is based. The concept of ‘genuineuse’ - which must be demonstrated in order to show thata mark has actually been used - has come before the Court ofJustice for further clarification. Where proof of use is adducedfor the first time before the Board of Appeal, the Court ofFirst Instance believes that, because of the principle of thecontinuity of functions, it is not out of time. That analysishas not been supported by the recent opinion of Advocate GeneralSharpston in the Arcol case and there is now considerable uncertaintypending a final pronouncement on the issue by the Court of Justice.In the meantime, the case law from Luxembourg continues to insiston three dimensional marks being like any other type of mark,whilst taking a very strict approach to the registrability ofsuch signs. Practical significance: The evidence of use to be adduced need not be quantatively significantand the ‘hurdle to be jumped’ is somewhat ‘lower’than was previously the case. Whether negligent representativesmay continue to use the continuity of functions principle tojustify recouping missed deadlines on appeal (particularly,when presenting proof of use), remains to be seen. However,what is certain is that three-dimensional marks will continueto be difficult to register.     

Newspaper juries

This article reports on a field experiment on the effect of media information on people’s attitudes towards the justice system. For the duration of a year a Dutch local newspaper took small groups of readers, called ‘newspaper jurors’, to court sessions of criminal cases and subsequently reported on their experiences and perceptions. Using a quasi-experimental design, we examined whether an attitude change in the general reader population of this particular local newspaper occurred as a result of the jury’s newspaper reports. Findings show that, after the treatment interval of 1 year, no attitude change in the general reader population could be identified that was absent in the control group.     

(Re-)Setting the Scholarly Agenda on Transjudicial Communication

We consider the contributions made by Robert H. Bork's Coercing Virtue (2003) and Anne-Marie Slaughter's A New World Order (2004) to the ongoing debate over the citation of foreign law in United States courts. While empirically minded sociolegal scholars might be tempted to dismiss these books as mere op-eds, that would be a mistake. Taken with the spate of other recent work, they supply the makings of an agenda for rigorous research devoted to understanding the exchange of law among nations.     

Lawyers of the Right: Networks and Organization

Lawyers for conservative and libertarian causes are active in organizing and mobilizing interest groups within the conservative coalition, and networks of relationships among those lawyers help to maintain and shape the coalition. Using data gathered in interviews with seventy-two such lawyers, this article analyzes characteristics of the lawyers and the structure of their networks. The findings suggest that the networks are divided into segments or blocks that are identified with particular constituencies, but that a distinct set of actors with extensive relationships serves to bridge the constituencies. Measures of centrality and brokerage confirm the structural importance of these actors in the network, and a search of references in news media confirms their prominence or prestige. This "core" set of actors occupies the "structural hole" in the network that separates the business constituency from religious conservatives. Libertarians, located near the core of the network, also occupy an intermediate position. Regression analysis of ties within the network suggests that the Federalist Society plays an important role in bringing the lawyers together.     

The Ends of Innocence: Age as a Mode of Inquiry in Sociolegal Studies

This article considers two recent books in the history of childhood, youth, and the law: Holly Brewer, By Birth or Consent and Stephen Robertson, Crimes Against Children . It argues that these works mark the emergence of age as a category of analysis in sociolegal studies. It calls for further investigations in the legal history of childhood and youth, outlines several areas of interest, and suggests that attention to age will alter how scholars look at the law by complicating key concepts such as innocence, authority, and citizenship. Studies of age and the law could benefit from cross-cultural and transnational approaches.     

State crimes and state harms: a tale of two definitional frameworks

Criminologists have long debated the issue of how to define crime, and hence, the scope of criminological inquiry. For years, some critical criminologists have argued for expanded definitions of crime that include harmful behaviors of the state that may not be officially defined as criminal. Other critical criminologists have argued that existing legal frameworks may be used to study varieties of state crime, and that defining the harmful actions of the state as criminal is important to help mobilize public support for their control. In this paper, we first trace the historical development of these two perspectives, and then offer a tentative solution to the seeming tension between these two perspectives.