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The Sydney Law Review
volume 41 number 1 march 2019 the sydney law review julius stone address 1 Inside and Outside Global Law – Hans Lindahl articles Litigants and Legal Representatives: A Study of Special Leave Applications in the High Court of Australia – Pam Stewart and Anita Stuhmcke 35 The Principle of Legality: Protecting Statutory Rights from Statutory Infringement? – Bruce Chen 73 An Empirical Investigation of 20 Years of Trade Mark Infringement Litigation in Australian Courts – Vicki T Huang 105 before the high court Comcare v Banerji: Public Servants and Political Communication – Kieran Pender 131 book review Markus D Dubber, The Dual Penal State: The Crisis of Criminal Law in Comparative-Historical Perspective – James Monaghan 149 EDITORIAL BOARD Elisa Arcioni (Editor) Celeste Black (Editor) Fady Aoun Tanya Mitchell Ben Chen Jacqui Mowbray Emily Hammond Joellen Riley Sheelagh McCracken Yane Svetiev STUDENT EDITORIAL COMMITTEE Callum Christodoulou Byron Howard Serena May Elisabeth Enright Laura Ismay Ajay Sivanathan George Farrugia Elsher Keir Vivienne Zhang Claudia Harper Charlotte Lewis Before the High Court Editor: Emily Hammond Publishing Manager: Cate Stewart Correspondence should be addressed to: Sydney Law Review Law Publishing Unit Sydney Law School Building F10, Eastern Avenue UNIVERSITY OF SYDNEY NSW 2006 AUSTRALIA Email: [email protected] Website and submissions: <https://sydney.edu.au/law/our-research/ publications/sydney-law-review.html> For subscriptions outside North America: <http://sydney.edu.au/sup/> For subscriptions in North America, contact Gaunt: [email protected] The Sydney Law Review is a refereed journal. © 2019 Sydney Law Review and authors. ISSN 0082–0512 (PRINT) ISSN 1444–9528 (ONLINE) Julius Stone Address Inside and Outside Global Law Hans Lindahl† Abstract Protracted and bitter resistance by alter-globalisation and anti-globalisation movements around the world shows that the globalisation of law transpires as the globalisation of inclusion and exclusion. -
Patents, Trademarks, and Copyrights
Patents, Trademarks, And Copyrights: A PRIMER PREPARED BY TABLE OF CONTENTS 1. INTRODUCTION . 5 B. DESIGN PATENTS . 14 WHAT ARE THE DIFFERENT TYPES OF INTELLECTUAL WHAT IS THE PROCESS FOR OBTAINING A PROPERTY PROTECTION AVAILABLE? . 5 DESIGN PATENT? . 15 2. PATENTS . 6 ARE DESIGN PATENTS OF ANY REAL VALUE? . 16 WHAT RIGHTS DO I OBTAIN WITH A PATENT? . 6 HOW LONG DO MY RIGHTS LAST WITH WHEN SHOULD A PATENT APPLICATION BE FILED? . 6 A DESIGN PATENT? . 16 ARE THERE DIFFERENT TYPES OF PATENTS? . 7 B. DESIGN PATENTS. 16 WHAT IS PATENT MARKING? . 7 HOW DO I TELL IF SOMEONE IS INFRINGING A. UTILITY PATENTS . 8 MY DESIGN PATENT? . 16 WHAT CAN THE SUBJECT OF A UTILITY CAN I PROTECT MY DESIGN OUTSIDE THE U.S.? . 17 PATENT APPLICATION BE? . .. 8 3. TRADEMARKS . 17 ARE COMPUTER PROGRAMS AND METHODS OF WHAT IS THE DIFFERENCE BETWEEN A TRADEMARK DOING BUSINESS PATENTABLE? . 8 AND A SERVICE MARK? . 18 WHAT IS THE TERM OF A PATENT? . 9 SHOULD I UNDERTAKE A TRADEMARK SEARCH? . .18 WHAT IS THE PROCESS FOR OBTAINING A HOW DO I REGISTER MY TRADEMARK? . .18 UTILITY PATENT? . .9 WHY BOTHER REGISTERING MY TRADEMARK? . 19 I PLAN TO OFFER MY PRODUCT FOR SALE SOON. WHAT IS THE TERM OF A TRADEMARK? . 20 CAN I FILE SOMETHING “QUICKLY” TO HOW DO I GIVE NOTICE OF TRADEMARK RIGHTS? . 21 PRESERVE MY RIGHTS? . 10 WHAT SHOULD I DO IF I THINK MY TRADEMARK HOW DO I TAKE ACTION IF I THINK MY PATENT IS OR TRADE DRESS IS BEING INFRINGED? . .21 BEING INFRINGED? . 11 CAN I OBTAIN INTERNATIONAL ARE PATENT SEARCHES AND CLEARANCE TRADEMARK PROTECTION? . -
Intellectual Property on the Cyder-Picket Line: a Comment on British Columbia Automobile Assn
934 ALBERTA LAW REVIEW VOL. 39(4) 2002 INTELLECTUAL PROPERTY ON THE CYDER-PICKET LINE: A COMMENT ON BRITISH COLUMBIA AUTOMOBILE ASSN. V. OFFICE AND PROFESSIONAL EMPLOYEES' INTERNATIONAL UNION, LOCAL 378 TERESA SC ASSA• I. INTRODUCTION A recent decision from the British Columbia Supreme Court, British Columbia Automobile Assn. v. O.P.E.I. U., local 378, 1 raises issues of"passing off," trademark, and copyright infringement relating to web sites, domain names,2 and meta tags. 3 In this comment I will explore these issues, all of which may commonly arise in situations of alleged competition between web sites. The case thus provides a context for exploring legitimate and unlawful uses of domain names and meta tags, copyright infringement, and web site design, and it touches on the role of s. 22 of the Trade-marks Act. 4 Because BCAA also occurs in the context of a labour dispute, it raises further issues about intellectual property rights and freedom of expression. These issues have arisen before in the non-Internet labour dispute cases of Cie Generate des Etablissements Michelin Michelin & Cie v. C.A. W.-Canada5 and Rotisseries St-Hubert ltee v. le Syndical des Travailleurs(euses) de la Rotisserie St-Hubert De Drummondville (C.S.N.),6 and their resolution continues to raise serious concerns about the balance being struck between monopolistic intellectual property rights and the fundamental right of freedom of expression. The plaintiff, British Columbia Automobile Association ("BCAA''), a member of the national Canadian Automobile Association ("CAA"), sued the defendant Office and Professional Employees' Union ("Union") over three successive web sites created by the Union to publicize a strike by BCAA employees. -
UNITED STATES DISTRICT COURT EASTERN DISTRICT of WASHINGTON OTR WHEEL ENGINEERING, INC., ) BLACKSTONE/OTR, LLC, and F.B.T. )
Case 2:14-cv-00085-LRS ECF No. 597 filed 10/05/16 PageID.<pageID> Page 1 of 31 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 OTR WHEEL ENGINEERING, INC., ) BLACKSTONE/OTR, LLC, and F.B.T. ) 9 ENTERPRISES, INC., ) ) 10 Plaintiffs, ) No. CV-14-085-LRS ) 11 v. ) ORDER RE ) POST-TRIAL MOTIONS 12 ) ) 13 WEST WORLDWIDE SERVICES, INC., ) and SAMUEL J. WEST, individually and ) 14 his marital community, SSL Holdings, Inc., ) SSL Global, Inc., SSL China LLC, and ) 15 Qingdao STW Tire Co., Ltd., ) ) 16 Defendants. ) ___________________________________ ) 17 BEFORE THE COURT are Plaintiffs’ Renewed Motion For Judgment As 18 A Matter Of Law On Fraud Counterclaim And Motion For New Trial On 19 Registered And Unregistered Trademark (ECF No. 547), Defendants’ Renewed 20 Motion For Judgment As A Matter Of Law Pursuant To Federal Rule Of Civil 21 Procedure 50 (ECF No. 550), Defendants’ Motion To Suspend Or Lift The 22 Preliminary Injunction And For Recovery Of Cash Bond (ECF No. 499), and 23 Plaintiffs’ Motion For Permanent Injunction (ECF No. 521). 24 These motions were heard with telephonic oral argument on September 19, 25 2016. Geana M. Van Dessel, Esq., and Robert J. Carlson, Esq., argued for 26 Plaintiffs (collectively referred to herein as “OTR”). Christine LeBron-Dykeman, 27 Esq., argued for Defendants (collectively referred to herein as “West”). 28 ORDER RE POST-TRIAL MOTIONS- 1 Case 2:14-cv-00085-LRS ECF No. 597 filed 10/05/16 PageID.<pageID> Page 2 of 31 1 I. BACKGROUND 2 Jury trial in this matter commenced on June 20, 2016. -
Reverse Passing Off: Preventing Healthy Competition
COMMENTS Reverse Passing Off: Preventing Healthy Competition Catherine Romero Wright DILBERT® reprinted by permission of United Feature Syndicate, Inc. I. INTRODUCTION 1 Chad Wayland, a university student, was an avid snowboarder. When he was not on the slopes or involved with homework, he was waxing his board or experimenting with adjustments to it in his garage. Eventually, Chad discovered that some of the adjustments that he had * Associate, Perkins Coie, Seattle; J.D. 1996, Seattle University School of Law; B.A. 1986, Stanford University. I would like to thank my husband, Daniel Wright, for all of his support, my daughter, Monica Romero Wright, who was with me throughout the process of writing this article, and Peter Schalestock for all of his help and encouragement. 1. This hypothetical is loosely based on a case that was filed in the District Court, Western District of Washington, in 1995. Seattle University Law Review [Vol. 20:785 made to his board really improved its performance. His snowboarding friends noticed it too. Chad ended up with a small garage business, fixing up snowboards for his friends and their friends. One day, a Japanese corporation approached Chad and asked if he would sell them a few of his modified snowboards. Knowing that this was an excellent opportunity to develop a business that he really loved, Chad accepted the offer. He purchased twenty snowboards from the Slide Corporation, modified fifteen of them, and sent the entire batch to the Japanese corporation. The Japanese corporation was impressed with his modified board. It ordered 200 more and offered to pay a very large amount. -
Emerging Protection For· Non-Traditional Trademarks: Product Packaging and Design
Emerging Protection for· Non-Traditional Trademarks: Product Packaging and Design Margaret A. Boulware Partner Baker & McKenzie LLP ASPATORE 55 INSIDE THE MINDS Introduction A focus of my practice is counseling clients on creative and cost-effective protection of their valuable intellectual property assets. Distinctive visual feature presentations, such as product design and packaging, are often oyerlooked for federal trademark protection, which lasts as long as the product feature is in use and extends throughout the U.S. Because my clients invest significant resources in new products, I cbunsel them to consider intellectual property protection for non-traditional trademarks as well as copyright and patent protection. I have represented clients in worldwide branding strategy ranging from consumer products in the automotive industry to highly sp·ecialized equipment for oil and gas exploration and production. My firm was founded in 1949 and has more than 3,900 locally qualified lawyers and 7,000 professional staff in sixty-seven offices and thirty-nine cotmtries. Baker & McKenzie is known for advising clients in trademark protection due to the global reach of its intellectual property professionals and represents some of the world's largest trademark portfolio owners. This · depth of knowledge provides my clients with a worldwide view of protection for non-traditional marks. I work with clients on initiatives for the global marketplace to enhance brand recognition and value. Protection for Non-Traditional Trademarks Protection of non-traditional trademarks balances the need for the customer to recognize the source of the product or service against the need for others to effectively compete. "Trademarks are protected from unauthorized use so consumers have reliable source indication and can trust the quality of the goods or services associated with a mark. -
Introduction to Trademark Law and Practice
WORLD INTELLECTUAL PROPERTY ORGANIZATION INTRODUCTION TO TRADEMARK LAW & PRACTICE THE BASIC CONCEPTS A WIPO TRAINING MANUAL GENEVA 1993 (Second Edition) ( ( WIPO PUBLICATION No 653 (El ISBN 92-805-0167-4 WIPO 1993 PREFACE The present publication is the second edition of a volume of the same title that was published by the World Intellectual Property Organization (WIPO) in 1987 and reprinted in 1990. The first edition was written by Mr. Douglas Myall, former Assistant Registrar of Trade Marks, United Kingdom. The present revised edition of the publication has been prepared by Mr. Gerd Kunze, Vevey, Switzerland, and reflects his extensive expertise and experience in the administration of the trademark operations of a large international corporation, Nestle S. A., as well as his intensive involvement, as a leading representative of several international non-governmental organizations, in international meetings convened by WIPO. This publication is intended to provide a practical introduction to trademark administration for those with little or no experience of the subject but who may have to deal with it in an official or business capacity. Throughout the text, the reader is invited to answer questions relating to the text. Those questions are numbered to correspond to the answers that are given, with a short commentary, in Appendix I. Arpad Bogsch Director General World Intellectual Property Organization February 1993 ( ( LIST OF CONTENTS CHAPTER 1. TRADEMARKS AND OTHER SIGNS: A GENERAL SURVEY 7 1.1 Use of trademarks in commerce . 9 1.2 What is a trademark?. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 9 1.3 Need for legal protection .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 10 1.4 How can a trademark be protected? . -
The Slants Decision Understates the Value of Trademark Registration in Promoting Speech - Correctly Decided with a Conclusory Analysis
THE JOHN MARSHALL REVIEW OF INTELLECTUAL PROPERTY LAW THE SLANTS DECISION UNDERSTATES THE VALUE OF TRADEMARK REGISTRATION IN PROMOTING SPEECH - CORRECTLY DECIDED WITH A CONCLUSORY ANALYSIS DAVID C. BREZINA ABSTRACT The highly anticipated case of Matal v. Tam resulted in the band, The Slants, eventually being able to register their band name as a trademark, with a goal in mind to reclaim Asian stereotypes. Despite this decision, it is not immediately clear how having a registration enhances the registrant’s right to use the mark as a part of free speech, when the Court observes that Tam could call his band The Slants even without registration. This article touches on the Tam case, by analyzing both the positive and negative rights that federal trademark registration yields. By expanding on a variety of examples, this article will explore the focus for a First Amendment evaluation on rights of speech, rather than focus primarily on the prima facie case that comes with having a trademark registration, concluding that the advantages to free speech resulting from registration are substantial. Copyright © 2018 The John Marshall Law School Cite as David C. Brezina, The Slants Decision Understates the Value of Trademark Registration in Promoting Speech - Correctly Decided With a Conclusory Analysis, 17 J. MARSHALL REV. INTELL. PROP. L. 380 (2018). THE SLANTS DECISION UNDERSTATES THE VALUE OF TRADEMARK REGISTRATION IN PROMOTING SPEECH - CORRECTLY DECIDED WITH A CONCLUSORY ANALYSIS DAVID C. BREZINA I. INTRODUCTION ........................................................................................................ 381 II. REFUSAL OF REGISTRATION TO DISPARAGING MARKS ............................................ 382 III. ARE FEDERAL TRADEMARK REGISTRATIONS PRIVATE SPEECH SUBJECT TO FIRST AMENDMENT PROTECTIONS? ................................................................................. 383 IV. -
Passing Off and Unfair Competition: Conflict and Convergence in Competition Law
Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2011 Passing Off and Unfair Competition: Conflict and Convergence in Competition Law Mary LaFrance University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Intellectual Property Law Commons, and the Torts Commons Recommended Citation LaFrance, Mary, "Passing Off and Unfair Competition: Conflict and Convergence in Competition Law" (2011). Scholarly Works. 784. https://scholars.law.unlv.edu/facpub/784 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. PASSING OFF AND UNFAIR COMPETITION: CONFLICT AND CONVERGENCE IN COMPETITION LAW Mary LaFrance" 2011 MICH. ST. L. REV. 1413 TABLE OF CONTENTS IN TRODU CTION ......................................................................................... 14 13 I. TRADITIONAL AND EXPANDED CONCEPTS OF PASSING OFF ............. 1415 II. UNFAIR COMPETITION ....................................................................... 1420 III. CONFLICT AND CONVERGENCE: THREE CASE STUDIES .................... 1423 A. Copycat Products and Comparative Advertising ........................ 1423 B . M erchandising Rights .................................................................. 1428 C. The Latest Battleground: Keyword Advertising ........................ -
The Distributive Effects of IP Registration
The Distributive Effects of IP Registration Miriam Marcowitz-Bitton* Emily Michiko Morris** 23 STAN. TECH. L. REV. 306 (2020) ABSTRACT Although the law often seeks to level the playing field, all too often the law has the opposite effect and tilts the playing field in favor of some over others. Intellectual property law is no different. This article focuses in particular on the registration of intellectual property (IP) rights, which has long been a prerequi- site for full protection under patent, trademark, and copyright law. Registering IP rights yields significant advantages, but it also imposes significant costs, which in turn may create distributive effects by hindering some more than oth- ers. Acknowledging IP rights without registration can therefore be a more egal- itarian way of protecting innovation and creativity. Indeed, some forms of IP—specifically copyright and trademark—allow for both registered and unregistered rights. Yet this article is the first to explore the distributive implications of such two-tiered regimes. On the one hand, register- * Associate Professor, Bar-Ilan University Law School, S.J.D University of Michigan Law School. ** Visiting Associate Professor, Pennsylvania State University Dickinson Law. The authors wish to thank Daniel Benoliel, Thomas Cotter, Estelle Derclaye, Rochelle Dreyfuss, John Duffy, Graham Dutfield, Janet Freilich, Deborah Gerhardt, Yotam Kaplan, Jacob Nussim, Ruth Okediji, Dotan Oliar, Julio Raffo, Rebecca Tush- net, Michael Schuster, Shlomit Yanisky-Ravid, and Lior Zemer, as well as the partic- ipants at the European Policy for Intellectual Property 14th Annual Conference, ETH, Zurich, Switzerland. Spring 2020 THE DISTRIBUTIVE EFFECTS OF IP REGISTRATION 307 ing IP rights helps provide the public with notice of those rights and their (ap- proximate) boundaries. -
Celebrity in Cyberspace: a Personality Rights Paradigm for Personal Domain Name Disputes
Celebrity in Cyberspace: A Personality Rights Paradigm for Personal Domain Name Disputes Jacqueline D. Lipton* Abstract When the Oscar-winning actress Julia Roberts fought for control of the <juliaroberts.com> domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the <name.com> space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes are based on trademark law. Although a number of individuals have successfully used these rules in practice, the focus on trademark law has led to inconsistent and often arbitrary results. This Article suggests that if personal names merit legal protection in cyberspace, it should be under an appropriate set of legal rules, rather than through further expansion of trademarks. This Article develops a new framework for personal domain name disputes based on the theories underlying the right of publicity * Professor, Co-Director, Center for Law, Technology and the Arts, Associate Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law. The author would particularly like to thank Professor Mark Janis whose comments on a previous paper proved to be the inspiration for this one. The author would also like to thank Professor Diane Zimmerman, Professor Mark Lemley, Professor Cynthia Ho, Professor Mark McKenna, Professor Brett Frischmann, Professor Lawrence Solum, Professor Amitai Aviram, Professor Ann Bartow, Professor Paul Heald, Professor Ilhyung Lee, and Professor B. -
The Right of Publicity in the United Kingdom
Loyola of Los Angeles Entertainment Law Review Volume 18 Number 3 Symposium: International Rights of Article 7 Publicity 3-1-1998 The Right of Publicity in the United Kingdom Hayley Stallard Follow this and additional works at: https://digitalcommons.lmu.edu/elr Part of the Law Commons Recommended Citation Hayley Stallard, The Right of Publicity in the United Kingdom, 18 Loy. L.A. Ent. L. Rev. 565 (1998). Available at: https://digitalcommons.lmu.edu/elr/vol18/iss3/7 This Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Entertainment Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. THE RIGHT OF PUBLICITY IN THE UNITED KINGDOM Hayley Stallard I. INTRODUCTION This Article discuses the limited scope of the right of publicity as it exists in the United Kingdom.' Unlike in the United States, the law of the United Kingdom ("U.K.") does not recognize a right of publicity or even a distinct right to protect a person's image or likeness from unauthorized use. Despite the common practice of merchandising and endorsement within the United Kingdom, there is no easy or straightforward way under U.K. law to protect a personality from unauthorized commercial exploitation. As in many other countries, however, a person can find a limited amount of protection from other bodies of U.K. law, including various intellectual property laws and personal and business torts.