Pub Date : 2020-12-25DOI: 10.4337/QMJIP.2020.04.06
Luke McDonagh
{"title":"Book review: Ilanah Fhima and Dev Gangjee, The Confusion Test in European Trade Mark Law (Oxford University Press, Oxford 2019) 320 pp.","authors":"Luke McDonagh","doi":"10.4337/QMJIP.2020.04.06","DOIUrl":"https://doi.org/10.4337/QMJIP.2020.04.06","url":null,"abstract":"","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44313967","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-01DOI: 10.4337/QMJIP.2020.04.01
Chuanzi Cai
China has long been the World's Walmart of counterfeits, and the remedies in counterfeiting cases have always been criticized as too small to compensate trademark owners. In the year 2013, China revised its trademark law, which increased the cap of statutory damages and incorporated secondary liability clauses into the law. Does the change of law bring any changes to the remedies granted in counterfeiting civil cases? What are the factors affecting court decisions? Relying on more than 800 civil cases in trademark counterfeiting, this article empirically studies the case characteristics and court decisions to understand the case outcomes and litigation scenario. It reveals the characteristics of civil litigation and factors affecting court decisions on trademark counterfeiting in China. Though there is some literature on remedies in trademark cases, very few analyses focus on courts' legal reasonings or the changes in civil remedies after the law revision. This article tries to fill in this gap, looking through the lens of the law on the books – the law revisions – and the law in practice – the court decisions.
{"title":"Civil litigation and court decisions on trademark counterfeiting in China: an empirical assessment","authors":"Chuanzi Cai","doi":"10.4337/QMJIP.2020.04.01","DOIUrl":"https://doi.org/10.4337/QMJIP.2020.04.01","url":null,"abstract":"China has long been the World's Walmart of counterfeits, and the remedies in counterfeiting cases have always been criticized as too small to compensate trademark owners. In the year 2013, China revised its trademark law, which increased the cap of statutory damages and incorporated secondary liability clauses into the law. Does the change of law bring any changes to the remedies granted in counterfeiting civil cases? What are the factors affecting court decisions? Relying on more than 800 civil cases in trademark counterfeiting, this article empirically studies the case characteristics and court decisions to understand the case outcomes and litigation scenario. It reveals the characteristics of civil litigation and factors affecting court decisions on trademark counterfeiting in China. Though there is some literature on remedies in trademark cases, very few analyses focus on courts' legal reasonings or the changes in civil remedies after the law revision. This article tries to fill in this gap, looking through the lens of the law on the books – the law revisions – and the law in practice – the court decisions.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"418-440"},"PeriodicalIF":0.4,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44773760","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-01DOI: 10.4337/QMJIP.2020.04.03
Bronwen Jones
Prior to the Arab Spring uprisings in 2011, no constitutional protection for intellectual property (IP) existed in the many earlier constitutions of Egypt or Tunisia. It is remarkable and surprising therefore that, in 2014, IP clauses appeared in the post-revolutionary constitutions of both countries. This raises the key question: why add to the existing regulation of IP in this way. Is constitutional protection just another example of the inexorable strengthening of IP rights (IPRs) or could it be a means of constraining them, where necessary, to protect other rights? This article argues that including IP in a constitution may, rather than merely strengthening IP owners' rights, open IPRs up to competition against more fundamental constitutionally protected human rights and, for example, support the prioritization of the right to health. This could be a valid explanation for and potential use of the inclusion of IP in the Egyptian and Tunisian Constitutions.
{"title":"The remarkable development and significance of constitutional protection for intellectual property rights in post-Arab Spring constitutions","authors":"Bronwen Jones","doi":"10.4337/QMJIP.2020.04.03","DOIUrl":"https://doi.org/10.4337/QMJIP.2020.04.03","url":null,"abstract":"Prior to the Arab Spring uprisings in 2011, no constitutional protection for intellectual property (IP) existed in the many earlier constitutions of Egypt or Tunisia. It is remarkable and surprising therefore that, in 2014, IP clauses appeared in the post-revolutionary constitutions of both countries. This raises the key question: why add to the existing regulation of IP in this way. Is constitutional protection just another example of the inexorable strengthening of IP rights (IPRs) or could it be a means of constraining them, where necessary, to protect other rights? This article argues that including IP in a constitution may, rather than merely strengthening IP owners' rights, open IPRs up to competition against more fundamental constitutionally protected human rights and, for example, support the prioritization of the right to health. This could be a valid explanation for and potential use of the inclusion of IP in the Egyptian and Tunisian Constitutions.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47062667","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-01DOI: 10.4337/QMJIP.2020.04.07
Oğulcan Ekiz
{"title":"Book review: Jani McCutcheon and Fiona McGaughey (eds), Research Handbook on Art and Law (Edward Elgar, Cheltenham 2020) 464 pp.","authors":"Oğulcan Ekiz","doi":"10.4337/QMJIP.2020.04.07","DOIUrl":"https://doi.org/10.4337/QMJIP.2020.04.07","url":null,"abstract":"","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42928003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-01DOI: 10.4337/QMJIP.2020.04.00
J. Gibson
{"title":"Sine qua non-sense: originality and the end of copyright 411","authors":"J. Gibson","doi":"10.4337/QMJIP.2020.04.00","DOIUrl":"https://doi.org/10.4337/QMJIP.2020.04.00","url":null,"abstract":"","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"411-417"},"PeriodicalIF":0.4,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41600272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-01DOI: 10.4337/QMJIP.2020.04.04
Haswira Nor Mohamad Hashim, M. H. M. Khair, Anida Mahmood, Rohazar Wati Zuallcobley, Zeti Zuryani Mohd Zakuan
This article reports a study that aims to formulate an outbound open innovation strategy for the exploitation of publicly funded research intellectual property in Malaysia. The outbound open innovation strategy is proposed due to the inability of the existing intellectual property commercialization strategy of Malaysian public universities to optimize the exploitation of publicly funded research intellectual property. The current strategy assumes that the best exploitation route is by way of commercialization to enable the public universities to monetize the publicly funded research intellectual property. This strategy creates a legal barrier since publicly funded research intellectual property is locked up behind proprietary rights and a rigid licensing regime. In contrast, outbound open innovation strategy allows publicly funded research intellectual property to be exploited through permissive licensing. This study employs a mixed-methods approach involving semi-structured interviews and survey questionnaires with technology licensing officers of Malaysian public universities. The output of this study is an outbound open innovation strategy which connects innovation to the intellectual property system and improves the socio-economic impact of publicly funded research intellectual property.
{"title":"The exploitation of publicly funded research intellectual property in Malaysia","authors":"Haswira Nor Mohamad Hashim, M. H. M. Khair, Anida Mahmood, Rohazar Wati Zuallcobley, Zeti Zuryani Mohd Zakuan","doi":"10.4337/QMJIP.2020.04.04","DOIUrl":"https://doi.org/10.4337/QMJIP.2020.04.04","url":null,"abstract":"This article reports a study that aims to formulate an outbound open innovation strategy for the exploitation of publicly funded research intellectual property in Malaysia. The outbound open innovation strategy is proposed due to the inability of the existing intellectual property commercialization strategy of Malaysian public universities to optimize the exploitation of publicly funded research intellectual property. The current strategy assumes that the best exploitation route is by way of commercialization to enable the public universities to monetize the publicly funded research intellectual property. This strategy creates a legal barrier since publicly funded research intellectual property is locked up behind proprietary rights and a rigid licensing regime. In contrast, outbound open innovation strategy allows publicly funded research intellectual property to be exploited through permissive licensing. This study employs a mixed-methods approach involving semi-structured interviews and survey questionnaires with technology licensing officers of Malaysian public universities. The output of this study is an outbound open innovation strategy which connects innovation to the intellectual property system and improves the socio-economic impact of publicly funded research intellectual property.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43769920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-01DOI: 10.4337/QMJIP.2020.04.02
Chenguo Zhang
In Michael Jeffery Jordan v Chinese Trademark Review and Adjudication Board, the Supreme People's Court (SPC) set a precedent for foreign companies and celebrities enforcing their rights of publicity against malicious trademark registration in China. This article introduces the legal grounds of the SPC's deliberations on Jordan's claims and responds to the critiques of most Chinese commentators in the field of civil law. Deeply influenced by German law, mainland China's legal system strictly distinguishes between personality rights and property rights. Comparative analysis with the US, Germany, Japan, and Hong Kong indicates that different legal civilizations have developed different approaches to position the right of publicity logically in their legal systems. The Jordan decision indicates that the ‘right of the name’ is a prior right provided in Article 32 of the Trademark Law of the PRC. This article contends that the ‘right of the name’ as provided in the Chinese Anti-Unfair Competition Law differs from the ‘right of the name’ articulated in Article 110 of the General Principles of Civil Law (2017). The former concerns the commercial interest and property aspects of a celebrity's name, which is fairly similar to the right of publicity, while the latter regards the personality right. The further development of the right of publicity protection relies in mainland China on a consistent judicial practice.
{"title":"The right of publicity in Chinese Law? A comment on the Michael Jeffrey Jordan case and comparative analysis with the US, UK, Germany, and the Asia Pacific","authors":"Chenguo Zhang","doi":"10.4337/QMJIP.2020.04.02","DOIUrl":"https://doi.org/10.4337/QMJIP.2020.04.02","url":null,"abstract":"In Michael Jeffery Jordan v Chinese Trademark Review and Adjudication Board, the Supreme People's Court (SPC) set a precedent for foreign companies and celebrities enforcing their rights of publicity against malicious trademark registration in China. This article introduces the legal grounds of the SPC's deliberations on Jordan's claims and responds to the critiques of most Chinese commentators in the field of civil law. Deeply influenced by German law, mainland China's legal system strictly distinguishes between personality rights and property rights. Comparative analysis with the US, Germany, Japan, and Hong Kong indicates that different legal civilizations have developed different approaches to position the right of publicity logically in their legal systems. The Jordan decision indicates that the ‘right of the name’ is a prior right provided in Article 32 of the Trademark Law of the PRC. This article contends that the ‘right of the name’ as provided in the Chinese Anti-Unfair Competition Law differs from the ‘right of the name’ articulated in Article 110 of the General Principles of Civil Law (2017). The former concerns the commercial interest and property aspects of a celebrity's name, which is fairly similar to the right of publicity, while the latter regards the personality right. The further development of the right of publicity protection relies in mainland China on a consistent judicial practice.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42654929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-15DOI: 10.4337/qmjip.2020.03.00
J. Gibson
{"title":"No more","authors":"J. Gibson","doi":"10.4337/qmjip.2020.03.00","DOIUrl":"https://doi.org/10.4337/qmjip.2020.03.00","url":null,"abstract":"","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2020-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/qmjip.2020.03.00","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48087159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.4337/qmjip.2020.03.08
D. Saxena
{"title":"Book review: N Lalitha and S Vinayan, Regional Products and Rural Livelihoods: A Study on Geographical Indications from India (Oxford University Press, New Delhi 2019) 180 pp.","authors":"D. Saxena","doi":"10.4337/qmjip.2020.03.08","DOIUrl":"https://doi.org/10.4337/qmjip.2020.03.08","url":null,"abstract":"","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"406-410"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42612152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.4337/qmjip.2020.03.02
Ming Chen, Xiaohai Liu
Bad faith trademark filings are a serious problem in China. During the fourth revision of the Chinese Trademark Law in 2019, bad faith filings without the intention to use the trademark was added as an absolute ground, with the aim that the Chinese Trademark Law can cope with the bad faith filings problem more effectively. Nevertheless, compared with the EU trademark system, the bad faith filing in the Chinese Trademark Law is not an absolute autonomous ground. Different kinds of bad faith filings are regulated by different clauses respectively. Some trademarks filed in bad faith can only be dealt with by relative grounds and cannot be invalidated after five years of their registrations. In order to deter malicious registration, bad faith filings per se should be introduced into the Chinese Trademark Law as an autonomous absolute ground. Trademarks filed in bad faith should be invalidated at any time.
{"title":"Bad faith filings in the Chinese Trademark Law: evolution, status quo and improvements","authors":"Ming Chen, Xiaohai Liu","doi":"10.4337/qmjip.2020.03.02","DOIUrl":"https://doi.org/10.4337/qmjip.2020.03.02","url":null,"abstract":"Bad faith trademark filings are a serious problem in China. During the fourth revision of the Chinese Trademark Law in 2019, bad faith filings without the intention to use the trademark was added as an absolute ground, with the aim that the Chinese Trademark Law can cope with the bad faith filings problem more effectively. Nevertheless, compared with the EU trademark system, the bad faith filing in the Chinese Trademark Law is not an absolute autonomous ground. Different kinds of bad faith filings are regulated by different clauses respectively. Some trademarks filed in bad faith can only be dealt with by relative grounds and cannot be invalidated after five years of their registrations. In order to deter malicious registration, bad faith filings per se should be introduced into the Chinese Trademark Law as an autonomous absolute ground. Trademarks filed in bad faith should be invalidated at any time.","PeriodicalId":42155,"journal":{"name":"Queen Mary Journal of Intellectual Property","volume":"10 1","pages":"306-320"},"PeriodicalIF":0.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/qmjip.2020.03.02","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41485548","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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