Consumer Value as the Key to Trade Mark Functionality

This article identifies the central role of consumer perceptions of value in design and marketing literature. Relying on this literature, it proposes changes to our legal understanding of functionality, the doctrine denying trade mark protection to technical and other features traders must access in order to compete. Marketing and design literature explains that consumers approach different values inherent in products holistically, influenced by emotional resonance. Thus, in the context of a developing body of interdisciplinary trade mark scholarship, I advocate a move away from trade mark law's formalistic approach to functionality, where technical and aesthetic product values are treated as distinct. Instead I argue for a single consumer-focussed competition-based functionality exclusion, centred around the ‘substantial value’ exclusion to registration

Filtered derivative with p-value method for multiple change-points detection

This paper deals with off-line detection of change points for time series of independent observations, when the number of change points is unknown. We propose a sequential analysis like method with linear time and memory complexity. Our method is based at first step, on Filtered Derivative method which detects the right change points but also false ones. We improve Filtered Derivative method by adding a second step in which we compute the p-values associated to each potential change points. Then we eliminate as false alarms the points which have p-value smaller than a given critical level. Next, our method is compared with the Penalized Least Square Criterion procedure on simulated data sets. Eventually, we apply Filtered Derivative with p-Value method to segmentation of heartbeat time series

Fast change point analysis on the Hurst index of piecewise fractional Brownian motion

In this presentation, we introduce a new method for change point analysis on the Hurst index for a piecewise fractional Brownian motion. We first set the model and the statistical problem. The proposed method is a transposition of the FDpV (Filtered Derivative with p-value) method introduced for the detection of change points on the mean in Bertrand et al. (2011) to the case of changes on the Hurst index. The underlying statistics of the FDpV technology is a new statistic estimator for Hurst index, so-called Increment Bernoulli Statistic (IBS). Both FDpV and IBS are methods with linear time and memory complexity, with respect to the size of the series. Thus the resulting method for change point analysis on Hurst index reaches also a linear complexity

The public domain

Considers whether the public domain is capable of delineation in intellectual property (IP) law. Reviews academic approaches equating the public domain to the commons, efforts to portray it as "no property", and the analogy drawn with public property. Details the freedom-based model evident in the public domain, including freedoms of competition, research, education and speech, and examines whether it is analogous to tangible property principles

Technical functionality in trade mark law

Examines the policies underpinning technical functionality in trade mark law. Reviews US literature on the conflicting policies behind functionality, whether such conflicts also exist within EU technical functionality, and ECJ cases on the rationale behind functionality exclusions. Considers the options for ensuring Regulation 2017/1001 art.7(1) aligns with the policy of channelling technically functional characteristics into the patent system

The CJEU decision in Brompton Bicycle (Case C-833/18): An original take on technical functionality?

In Brompton Bicycle, the CJEU considered copyright protection of functional product designs. Protecting such artefacts through copyright law raises difficult questions of whether subject-matter previously protected by patent or design law, but which has since entered the public domain, should be re-enclosed via copyright. However, unlike trade marks and designs, EU copyright has no functionality exclusion, nor, following Cofemel, can technical works be excluded from copyright per se. Nonetheless, using basic copyright principles of originality and the designer’s creative freedom, the Brompton court crafted a functionality exclusion in the absence of a legislative basis. It is argued that, while this decision demonstrates a degree of convergence in the approach to functionality across the different IPRs, how the functionality exclusions apply in practice is different. Also, questions remain about how this decision will be applied in practice—in particular, what will be considered to be a relevant design constraint and regarding the approach to subject-matter consisting of a mixture of technical and non-technical features

Off-line detection of multiple change points with the Filtered Derivative with p-Value method

This paper deals with off-line detection of change points for time series of independent observations, when the number of change points is unknown. We propose a sequential analysis like method with linear time and memory complexity. Our method is based at first step, on Filtered Derivative method which detects the right change points but also false ones. We improve Filtered Derivative method by adding a second step in which we compute the p-values associated to each potential change points. Then we eliminate as false alarms the points which have p-value smaller than a given critical level. Next, our method is compared with the Penalized Least Square Criterion procedure on simulated data sets. Eventually, we apply Filtered Derivative with p-Value method to segmentation of heartbeat time series, and detection of change points in the average daily volume of financial time series

The public interest in European trade mark law

Reviews EU case law illustrating the various ways that account has been taken of "public interest" considerations in determining the registrability, validity or infringement of trade marks, including rulings on: descriptive marks; the registration of shapes, colours and functional marks; distinctiveness; the scope of the protection enjoyed by trade mark owners; and the defences to infringement under Directive 2008/95 art.6(1)