Academic Opinion Flashcards
D Meale ‘Interflora: the last word’
Uncertainties remain - functions are vague
As internet continues to develop/evolve we may find this body of law futile
Ilanah Simon ‘TMs and Free Speech’
Even tho free-speech is appearing more frequently in TMs - has had little genuine impact on law
Altho are pockets of genuine concern w speech - TMs grappling is patchy and superficial
CJEU barely discussed
A Kur ‘The EU TM Reform Package’
Current package offers a window into opportunities - too ambitious
Harmonised approach desirable
Christopher Morcom ‘L’oreal v Bellure’
CA applied correctly
Freedom of expression cannot be unqualified
Issue now about how to achieve balance
L’oreal brings UK further towards compliance - not too far
Christopher Morcom ‘TMs and Internet’
Rulings w ISPs are clear
Not course of trade is not surprising
R Brown ‘Adertising + Public Interest’
When courts protect Tms furhter private and public goals
TMs are a manifold of symbols:
1) source 2) reputation 3) satisfaction 4) persuasion value 5) symbol of value
Should keep channels open
M Senfleben ‘Function Theory’
European Commission proposal is bad
End function theory would enhance legal certainty for TM users and owners
Function theory uncertain as is unforeseeable
A Kur ‘TMs function don’t they?’
EC’s approach nor current approach good
More important than function is fairness
Sophia Hon
infringement regardless the degreee of similarity is bad faith
T Phillips ‘Strong TMs and likelihood of C’
ECJ address in piecemeal fashion creating patchwork of decisions
Raise as many q’s as they answer
Shows unfamiliarity
Barton Beele ‘The Semiotic Analysis’
TM using lens of Semiotics
TM law based on underlying social logic
Consumers will demand signs - TM law is to ensure they meet demands as efficiently as possible
Ilanah Simon ‘How does Essential Function\
Essential function is grand unifying theory - brings together all aspects of TM law
Could be possible to use to predict future
In any dispute - meaning that best reflects essential function adopted
First call when interp of TMs is essential function
H Schmidt ‘Likelihood of C in EU TMs’
Art 5.1 v clear no unanswered q’s
J Tarawaneh ‘A New Classification’
A new classification posed: indicator, incentive and stimulator
3 umbrella functions contain the functions which encompass all modern functions
As a result of expansion - traders are willing to invest time and resources
Lack of clarity complicated by policy: difficult to balance cost and protection
Whichever approach need to ensure price paid to get protection not exceed benefit
W Landes + R Posner
Tm best explained on basis that law trying to promote economic efficiency
