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12383 results in International Trade Law

Page 497 of 620

  • 16 - Traversing the cultures of trade marks: observations on the anthropological approach of James Leach

    • By Megan Richardson, Associate Professor in the Law Faculty University of Melbourne Australia
  • Edited by Lionel Bently, University of Cambridge, Jennifer Davis, University of Cambridge, Jane C. Ginsburg, Columbia University, New York
  • Book:
    Trade Marks and Brands
    Published online:
    13 April 2010
    Print publication:
    12 June 2008, pp 343-358

  • Summary

    Anthropology, we are told, involves the study of societies, so an anthropological perspective on trade marks, by definition, entails a search for social meaning. James Leach notes that a ‘trade mark’ is, in legal terms, a sign used to denote the source of a trader's goods or services in the market. The legislators’ conception of a trade mark, reinforced by countless judicial statements and scholarly pronouncements, however, only gives a partial account of trade marks. In particular, it suggests that the central function of trade marks is to mediate between supply and demand in a mass market economy. This leads to a delimited role for trade marks, under which (as Dr. Leach says) ‘the primary value of the sign is not in itself, but in reference to a real thing in the world, a service (labour) of others, or an item that is used/consumed by its receiver’. Or, in the words of Duncan Kerly from the first edition of his Law of Trade Marks, published in 1894, a trade mark is ‘a symbol … applied or attached to goods … offered for sale in the market …, so as to distinguish them from similar goods, and to identify them with a particular trader …’, the implication being that they have no other important function. Nevertheless, it may be questioned whether this conception fully accounts for the operation of trade marks in practice or even under law.

  • 1 - The making of modern trade mark law: the construction of the legal concept of trade mark (1860–1880)

    • By Lionel Bently, Professor of Intellectual Property Law and Director of the Centre; Director of the Centre for Intellectual Property and Information Law University of Cambridge
  • Edited by Lionel Bently, University of Cambridge, Jennifer Davis, University of Cambridge, Jane C. Ginsburg, Columbia University, New York
  • Book:
    Trade Marks and Brands
    Published online:
    13 April 2010
    Print publication:
    12 June 2008, pp 3-41

  • Summary

    Although some accounts of the history of trade mark law trace the origin of trade mark protection to Greek or Roman times, and other accounts of the British history locate the origins of British trade mark law in the medieval guilds, or the sixteenth-century case of JG v Samford, British trade mark law did not really take anything like its modern shape until the latter half of the nineteenth century. The period between 1860 and 1910 witnessed the development of many of the characteristic features of modern trade mark law: a legal understanding of a trade mark as a sign which indicates trade origin; the establishment of a central registry in 1876; the conceptualization of the trade mark as an object of property; the recognition of a dual system of protection: one based on registration, the other based on use in the marketplace; and the development of international arrangements for the protection of marks in foreign territories. Looking back from the early twenty-first century, it is clear that, while there were significant developments in trade mark law in the period before 1860 and the period after 1910, the majority of the most salient features of the current trade mark regime were developed (or if not developed, institutionalized) in this period of intense legislative, judicial, diplomatic and scholarly activity.

  • 7 - Brand culture: trade marks, marketing and consumption

  • Edited by Lionel Bently, University of Cambridge, Jennifer Davis, University of Cambridge, Jane C. Ginsburg, Columbia University, New York
  • Book:
    Trade Marks and Brands
    Published online:
    13 April 2010
    Print publication:
    12 June 2008, pp 161-176

  • Summary

    Visual images constitute much corporate communication about products, economic performance and social responsibility, and also inform governmental efforts to create positive attitudes for citizens, consumers and organizations. Brand image, corporate image, advertising images and images of identity all depend upon compelling visual imagery. Variously referred to as the attention economy, the aesthetic economy and the experience economy, this visual turn in marketing may call for rethinking traditional approaches to brands and trade marks. Branding's reliance on visual rhetoric brings up a host of interdisciplinary questions. How do images function within marketing communication? What does the production and consumption of images mean for marketing, law and society? How does the handling of images in the allied fields of visual studies, art history, film theory, design management and corporate identity shed light on the relationships between visual images, brands and consumption?

    This chapter discusses methodological and theoretical issues of visual images as they pertain to brands, via interdisciplinary research examples and exemplars. I place visual issues within a broader theoretical perspective of brand culture – the cultural dimensions or codes of brands (history, images, myths, art, theatre) that influence brand meaning in the marketplace. Visual consumer research cuts across methodological and topical boundary lines – the possibilities and problems of visual approaches encompass experimental and interpretive realms, and include such varied topics as information processing, image interpretation and research techniques.

Dispute Settlement Reports 2006
  • Volume 7, Pages 2767–3184
  • World Trade Organization
  • Published online:
    13 December 2017
    Print publication:
    12 June 2008
  • The Dispute Settlement Reports of the World Trade Organization (WTO) include Panel and Appellate Body reports, as well as arbitration awards, in disputes concerning the rights and obligations of WTO members under the provisions of the Marrakesh Agreement Establishing the World Trade Organization. These are the WTO authorized and paginated reports in English. An essential addition to the library of all practising and academic trade lawyers, and needed by students worldwide taking courses in international economic or trade law. Volumes IV to VIII report on European Communities – Measures Affecting the Approval and Marketing of Biotech Products.

  • 18 - (Re)Locating Geographical Indications: a response to Bronwyn Parry

    • By Dev Gangjee, Research Associate of the Oxford Intellectual Property Research Centre
  • Edited by Lionel Bently, University of Cambridge, Jennifer Davis, University of Cambridge, Jane C. Ginsburg, Columbia University, New York
  • Book:
    Trade Marks and Brands
    Published online:
    13 April 2010
    Print publication:
    12 June 2008, pp 381-397

  • Summary

    Introduction

    A particular vision of geographical place has shaped much of the discourse and international legal architecture for the protection of Geographical Indications (GIs). Dr Bronwyn Parry incisively demonstrates that this view is dangerously myopic as it makes several unsustainable assumptions. If the function of GIs is to guarantee the quality and authenticity of regional products such as Champagne, these desirable features rest on static, deterministic notions of place. Contemporary scholarship reveals place to be far more porous and dynamic, thereby throwing into doubt the very ontological foundations of GI protection. While acknowledging the value of this appraisal, this response frames it within historical legal and institutional responses, thereby drawing limits around its conclusions. The critique is potent but does not necessarily signal the end of GIs. Instead, it helps to reposition the justification for this regime, placing it on a more durable foundation.

    Through a formal challenge to the central premise of GI protection – that place can act as a guarantor for quality and authenticity – Dr Parry is asking whether GIs are ‘fit for purpose’. Through the lens of a richer account of place, she interrogates this premise by asking: (i) what is the work GIs are being asked to do?; (ii) how they do this work; and (iii) whether more suitable alternatives exist. As a response to this, this response begins by both expanding the critique and qualifying it.

  • 12 - The economic rationale of trade marks: an economist's critique

    • By Jonathan Aldred, Emmanuel College; Newton Trust Lecturer Department of Land Economy University of Cambridge
  • Edited by Lionel Bently, University of Cambridge, Jennifer Davis, University of Cambridge, Jane C. Ginsburg, Columbia University, New York
  • Book:
    Trade Marks and Brands
    Published online:
    13 April 2010
    Print publication:
    12 June 2008, pp 267-282

  • Summary

    Introduction

    I found Andrew Griffiths' chapter a fascinating read. As an economist previously unfamiliar with the foundations of trade mark law, I was surprised to learn of the dominant influence of ‘Law-and-Economics’. One reason for my surprise is that Law-and-Economics rests on a very particular approach to economics, one arguably not shared by the majority of economists. Law-and-Economics rests on what might be loosely termed ‘Chicago economics’, which overlaps heavily, but does not coincide, with orthodox neo-classical economics. Thus Griffiths' tendency throughout to refer to the foundations of Law-and-Economics as ‘neo-classical’ economics is rather misleading. This is not the place to describe the distinctive features of Chicago economics in detail; I offer one here as an illustration. Chicago economics, and so Law-and-Economics, assumes that individuals are self-interested, in a narrow sense: individuals always maximize their own personal material benefit. Law-and-Economics, then, is the world of that caricature, homo economicus. I will return to exactly why it is a caricature later. In contrast, while neo-classical economics is well known for positing ‘utility maximizing’ agents, utility is defined in entirely formal terms as the numerical representation of individual preferences. Hence ‘utility maximization’ becomes merely ‘maximization of preference satisfaction’, or, more prosaically, ‘doing what you want to do’. And if your preferences are best described as ‘self-sacrificing’ rather than ‘self-interested’, then so be it: ‘The postulate that an agent is characterised by preferences rules out neither the saint nor Genghis Khan.’

  • European Communities – Selected Customs Matters (WT/DS315): Report of the Appellate Body

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2006
    Published online:
    13 December 2017
    Print publication:
    12 June 2008, pp 3791-3914

  • Summary

    INTRODUCTION

    The United States and the European Communities each appeal certain issues of law and legal interpretations developed in the Panel Report, European Communities – Selected Customs Matters (the “Panel Report”).1 The Panel was established to consider a complaint by the United States concerning the European Communities’ system of customs administration under Articles X:3(a) and X:3(b) of the General Agreement on Tariffs and Trade 1994 (the “GATT 1994”).

    Before the Panel, the United States claimed that the European Communities administers the following instruments of its customs law in a non-uniform manner, in violation of Article X:3(a) of the GATT 1994:

  • • Council Regulation (EEC) No. 2913/92 of 12 October 1992 establishing the Community Customs Code, including all annexes thereto, as amended (the “Community Customs Code”);

  • • Commission Regulation (EEC) No. 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No. 2913/92 of 12 October 1992 establishing the Community Customs Code, including all annexes thereto, as amended (the “Implementing Regulation”);

  • • Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, including all annexes thereto, as amended (the “Common Customs Tariff”);

  • • the Integrated Tariff of the European Communities established by virtue of Article 2 of Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, including all annexes thereto, as amended (the “TARIC”); and

  • • for each of the above laws and regulations, all amendments, “implementing measures and other related measures”.

    • The United States submitted that various instances of alleged non-uniform administration of European Communities customs law illustrate that the European Communities’ system of customs administration as a whole is inconsistent with the requirement of uniform administration contained in Article X:3(a) of the GATT 1994. In addition, the United States claimed that the European Communities does not provide for the prompt review and correction of administrative action relating to customs matters as required by Article X:3(b) of the GATT 1994.

  • 14 - An alternative approach to dilution protection: a response to Scott, Oliver and Ley-Pineda

    • By Michael Spence, Head of the Social Sciences Division University of Oxford; St Catherine's College Oxford
  • Edited by Lionel Bently, University of Cambridge, Jennifer Davis, University of Cambridge, Jane C. Ginsburg, Columbia University, New York
  • Book:
    Trade Marks and Brands
    Published online:
    13 April 2010
    Print publication:
    12 June 2008, pp 306-316

  • Summary

    Introduction

    The chapter by Scott, Oliver and Ley-Pineda makes a powerful case against both utilitarian and Lockean justifications of the protection of trade marks against ‘dilution’ or, as I prefer it, protection against ‘allusion’ to the mark. In so doing, they reinforce a common scepticism about this type of protection. To that extent, the chapter makes a significant contribution to our understanding of trade mark law.

    There are, of course, claims of detail in the chapter with which I disagree. For example, the authors' discussion of the object of an intellectual property right fails adequately to take account of either the structure of the relevant regimes, or the ways in which they develop. Thus section 60(1) of the Patent Act 1977 introduces a list of potentially infringing uses of an invention with the words ‘… a person infringes a patent if, but only if, … he does any of the following things’. Section 16(1) of the Copyright, Designs and Patents Act 1988 introduces a similar, but more specific, list with the words ‘[t]he owner of the copyright in a work has … the exclusive right to do the following acts in the United Kingdom’. The clear implication is that if a patent holder or copyright owner has ‘an open-ended set of use-privileges, control powers and powers of transmission’, they relate, not to the invention or the work, but to the legal right that is the patent or the copyright.

  • 6 - What linguistics can do for trademark law

    • By Graeme B. Dinwoodie, Professor of Law, Associate Dean, and Director of the Program in Intellectual Property Law Chicago-Kent College of Law; Chair in Intellectual Property Law Queen Mary College University of London
  • Edited by Lionel Bently, University of Cambridge, Jennifer Davis, University of Cambridge, Jane C. Ginsburg, Columbia University, New York
  • Book:
    Trade Marks and Brands
    Published online:
    13 April 2010
    Print publication:
    12 June 2008, pp 140-158

  • Summary

    Introduction

    In his contribution to this volume, Alan Durant provides legal scholars with both a rich understanding of how linguists view terms that are part of the basic argot of trademark law and a potentially vital explanation of the different social functions that word marks might serve. Both aspects of his analysis introduce the complex variable of reality into trademark law. Trademark law must decide whether and when to take account of that complex reality, and what weight to afford such reality, no matter how enriched an account linguists offer about the actual meaning of signs. In this response, I suggest that, while trademark law should not become beholden to linguistics, the lessons of Durant's linguistic analysis are to some extent already accommodated in the practice of trademark law, and could be important guides in the further development of a number of legal principles.

    Section 1 of this chapter explains why linguistics should matter to trademark law. Traditionally, and still most typically, words comprise the largest group of trademark subject matter. Trademark law is structured around protecting the meanings of those words, at least as understood by consumers, in order (classically) to prevent consumer confusion. I suggest some reasons why trademark law might ignore the precise reality of consumer understanding. However, the starting point (if not always the end point) of trademark law in many contexts is an understanding of how signs actually work in context, and linguistics is one way of establishing that starting point for words.

  • 8 - ‘Brand culture: trade marks, marketing and consumption’ – responding legally to Professor Schroeder's paper

    • By David Vaver, Emeritus Professor of Intellectual Property and Information Technology Law University of Oxford; Director of the Oxford Intellectual Property Research Centre St Peter's College
  • Edited by Lionel Bently, University of Cambridge, Jennifer Davis, University of Cambridge, Jane C. Ginsburg, Columbia University, New York
  • Book:
    Trade Marks and Brands
    Published online:
    13 April 2010
    Print publication:
    12 June 2008, pp 177-198

  • Summary

    Professor Schroeder's chapter on ‘Brand culture’ states that ‘[i]mages – including brand images, corporate images and websites – constitute much corporate communication about products, economic performance and corporate identity’. It concludes that ‘we live in a branded world: brands infuse culture with meaning, and brand management exerts a profound influence on contemporary society’.

    To make those points, Schroeder focuses on one sort of image: the photograph. He discusses how advertising uses images, often scanned and altered photographs, to give the advertised product a positive message with which especially adult male consumers can identify and which ultimately persuades them to buy. The ads he presents fall into familiar patterns. They show that a computer is not just a computer, liquor does not just make you drunk, and banks do not just steal your money through the various euphemisms by which your credit with them is progressively reduced. No, just carrying a laptop makes you a man (if you are one genetically; if you're not, then this ad is not for you); liquor makes any nerd attractive to women; and banks and other financial houses are solid citizens who spread democracy worldwide, and who among us would not want to donate our money to them so they could go on doing such good works on our behalf?

    Part of the culture in which advertising and brands operate is law. Academic lawyers considering these ads might approach them in various ways, depending on their theoretical interests.

  • United States – Final Dumping Determination on Softwood Lumber from Canada - Recourse to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes by Canada (WT/DS264): Report of the Appellate Body

  • World Trade Organization
  • Book:
    Dispute Settlement Reports 2006
    Published online:
    12 December 2017
    Print publication:
    12 June 2008, pp 5087-5146

  • Summary

    INTRODUCTION

    Canada appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Final Dumping Determination on Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada (the “Panel Report”). The Panel was established to consider a complaint by Canada regarding the consistency with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the “Anti-Dumping Agreement”) of a measure taken by the United States to comply with the recommendations and rulings of the Dispute Settlement Body (the “DSB”) in the US – Softwood Lumber V proceedings.

    The original dispute concerned an anti-dumping investigation by the United States Department of Commerce (the “USDOC”) that led to the imposition, in May 2002, of anti-dumping duties on imports of softwood lumber from Canada. Before the panel in US – Softwood Lumber V (the “original panel”), Canada claimed that, in imposing anti-dumping duties on imports of softwood lumber from Canada, the United States had acted inconsistently with several provisions of the Anti-Dumping Agreement, as well as with Articles VI:1 and VI:2 of the General Agreement on Tariffs and Trade 1994 (the “GATT 1994”). The original panel found, inter alia, that the United States had acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement in determining the existence of margins of dumping on the basis of a methodology incorporating the practice of “zeroing”. In the light of its finding on Article 2.4.2, the original panel applied judicial economy and declined to rule on Canada's claims under Article 2.4 of the Anti-Dumping Agreement (“fair comparison”) in respect of zeroing. The original panel's finding of inconsistency with Article 2.4.2 was upheld by the Appellate Body.

    The original panel and Appellate Body reports were adopted by the DSB on 31 August 2004. On 6 December 2004, Canada and the United States jointly informed the DSB, pursuant to Article 21.3(b) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”), that they had mutually agreed that the reasonable period of time to implement the recommendations and rulings of the DSB would be seven and one-half months, that is, from 31 August 2004 to 15 April 2005. The reasonable period of time was later extended to 2 May 2005 by agreement between the parties.

Page 497 of 620