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

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

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

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 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)

Reputation in European Trade Mark Law: A Re-examination

Under the harmonised European trade mark regime marks with a reputation enjoy expanded protection. This article casts doubt on whether this ‘reputational trigger’ can be justified. It then explores some difficult operational questions about the way the reputation threshold works in cases where the mark enjoys fame only in niche markets or in a limited geographical area, the aim being to illustrate further why reputation is an unsatisfactory trigger for a different type of trade mark protection. Finally, it looks at some of the evidential difficulties involved in adjudicating disputes in which expanded protection is being claimed. It concludes by suggesting that if the evidential problems we identify were tackled the reputation threshold could be abandoned

Brexit: EU27 Position Paper on Intellectual Property

Position Paper transmitted to EU27 on intellectual property rights (including geographical indications), 6 September 2017, available at https://ec.europa.eu/commission/sites/beta-political/files/position-paper-intellectual-property-rights_en.pdf / The EU27 Position Paper on Intellectual Property sets out the EU Member States’ starting position in relation to pre-existing IP rights as part of the Brexit negotiations

Characterization of Tunisian genetic resources of Watermelon (Citrullus lanatus)

In Tunisia, watermelon [Citrullus lanatus (Thunb.) Matsum. & Nakai] is largely consumed in summer as a fresh fruit. This cucurbit is cultivated in various areas in the country. The landraces are a very important source of genetic diversity, constituting an important genetic resource for plant breeders. The aim of the present study was to collect and characterize fruit diversity of watermelon landraces collected from local farmers from Monastir and Sousse areas of Tunisia. The landraces were categorized for 20 variables of fruit features according to UPOV descriptors for watermelon. Also, these landraces were screened by artificial inoculation for their resistance to Fusarium oxysporun f.sp niveum (FON) races 0 and 2 to identify sources of resistance to Fusarium wilt. Significant differences were found among accessions for the quantitative traits recorded, revealing a large diversity. The evaluated watermelon landraces expressed a wide range of phenotypes including fruit size, flesh color, rind pattern, FON disease resistance and sweetness.Publishe