Delicious LiveJournal Links for 5-22-2010

[andrewducker]

• A Woman’s Toolkit for Seeking a Raise
  (tags: feminism gender money women work economics career salary)
• Harrison Ford talks about Star Wars, for pretty much the first time.
  (tags: starwars HarrisonFord)
• Court of Appeal follows EU trade mark ruling despite disagreeing with it
  (tags: law Europe EpicFail intellectual_property)
• MetaFilter vs the sex traffickers
  (tags: internet social slavery metafilter trafficking usa)

Comments

[major-clanger.livejournal.com]

Epic Fail for who?

The UK Courts, all the way to the Supreme Court, are bound to follow the interpretation decisions of the CJEU in respect of matters based on EU law. The Trade Marks Act 1994 is based very heavily on Directive 89/104/EEC of 21 December 1988, which was implemented to harmonise trade mark law across the EU (or EC as it then was).

You know that regular complaint of the red-top press about how the UK is subordinate to EU law? In areas where we have passed laws that implement EU Directives (and the UK is obliged by treaty to do so within 3 years of them passing) then it is true. The Court of Appeal had to ask for interpretation on this point in order to resolve the case before it, and is obliged to follow the CJEU's decision, no matter how much the judges in question dislike it.

This is part and parcel of being pro-Europe: we've handed over some of our sovereignty and this means we get told to do things in a way that left to our purely domestic legal traditions we would not do.

[andrewducker]

I have no problem with the court being European. I have a problem with the interpretation handed down (or the original law, depending on whether the interpretation was unavoidable). Banning a company from saying something which is true strikes me as an abridgement of free speech (and seems to have struck the judge in much the same way). Avoiding fraud, misrepresentation or passing off is one thing, saying "We make X, it's indistringuishable from Y" is forbidden because Y is trademarked is something I find despicable.

[major-clanger.livejournal.com]

It's part of a disturbing trend (from the point of view of UK intellectual property lawyers) by which the CJEU seems to be taking a progressively more continental view of trade marks as representing somehow a 'brand' rather than being purely a 'badge of origin' of goods as in the traditional UK approach. For instance, trade mark law talks about marks being 'confusingly similar' - at least in the English language version - but some CJEU decisions have taken this to mean 'causes association in the mind of the customer' which is much broader. Part of the problem is that different translations of the law have, almost inevitably, different connotations; another part is that continental legal systems tend to be very strong on the author's rights aspects of IP, which means that there is almost a bias in favour of whoever is bringing the claim.

The real frustration is that there's no obvious answer (apart from the unthinkable option of withdrawing from the EU). We are bound by treaty to follow the legal interpretation of the CJEU in respect of laws that are based on EU Directives, and the UK Govt does not have the option of vetoing Directives it disagrees with thanks to the majority voting system in the EU Council. I know some lawyers on what would generally be termed the liberal left who have become very anti-EU because of this sort of issue.

[andrewducker]

The obvious answer would be to persuade people of the benefits of going with a different view of IP. But I can see that this might not be a quick solution. I think that the benefits of a pan-European approach outweigh the problems most of the time, and it's therefore worth persevering with it.