International and regional courts are increasingly being asked to determine the rights and responsibilities of states in relation to climate harm. The context for such requests is that the 2015 Paris Agreement, comprising primarily procedural obligations and obligations of conduct, and premised on national determination, appears by itself radically insufficient to resolve the existential climate crisis the planet is facing. This article explores if this is indeed the case and argues that the 2015 Paris Agreement must be interpreted in its ‘normative environment’. The ‘normative environment’ includes the customary international law principle of harm prevention, other treaties, including human rights ones, and a set of principles of varying legal status but considerable operational relevance and guidance. This article examines specific obligations from the 2015 Paris Agreement and seeks to concretize and strengthen them based on this interpretative approach. While such strengthened obligations might yet be insufficient to decisively resolve the climate crisis, these nevertheless reflect a richer account of international legal resolve relating to climate change—one that is premised on an understanding of international law as a seamless web of inter-locking obligations rather than of treaties functioning as atomistic reflections of state consent in that area.
{"title":"Interpreting the Paris Agreement in its Normative Environment","authors":"Lavanya Rajamani","doi":"10.1093/clp/cuae011","DOIUrl":"https://doi.org/10.1093/clp/cuae011","url":null,"abstract":"International and regional courts are increasingly being asked to determine the rights and responsibilities of states in relation to climate harm. The context for such requests is that the 2015 Paris Agreement, comprising primarily procedural obligations and obligations of conduct, and premised on national determination, appears by itself radically insufficient to resolve the existential climate crisis the planet is facing. This article explores if this is indeed the case and argues that the 2015 Paris Agreement must be interpreted in its ‘normative environment’. The ‘normative environment’ includes the customary international law principle of harm prevention, other treaties, including human rights ones, and a set of principles of varying legal status but considerable operational relevance and guidance. This article examines specific obligations from the 2015 Paris Agreement and seeks to concretize and strengthen them based on this interpretative approach. While such strengthened obligations might yet be insufficient to decisively resolve the climate crisis, these nevertheless reflect a richer account of international legal resolve relating to climate change—one that is premised on an understanding of international law as a seamless web of inter-locking obligations rather than of treaties functioning as atomistic reflections of state consent in that area.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"29 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142184841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Courts tasked with ruling on religious freedom claims in the private sector workplace have been faced with the following challenge: too weak a protection of religious freedom and it will become meaningless; too strong, and individual freedom will be stifled. Recently, courts on each side of the Atlantic have, respectively, leant towards each of these two extremes. In Europe, courts have afforded minimalist and, as I will argue, too restrictive a protection to religious interests. Whether out of deference to state constitutional traditions or economic interests, they have often undermined the protection of religious freedom. Conversely, in the United States, the Supreme Court has granted a maximalist and, as I will argue, excessive protection to religious interests. The article will demonstrate the flaws of each approach. It will unravel the main three types of bias that underlie these extreme positions, namely the state, the economic and the religious bias.
{"title":"Religious Expression and Exemptions in the Private Sector Workplace: Spotting Bias","authors":"Myriam Hunter-Henin","doi":"10.1093/clp/cuae008","DOIUrl":"https://doi.org/10.1093/clp/cuae008","url":null,"abstract":"Courts tasked with ruling on religious freedom claims in the private sector workplace have been faced with the following challenge: too weak a protection of religious freedom and it will become meaningless; too strong, and individual freedom will be stifled. Recently, courts on each side of the Atlantic have, respectively, leant towards each of these two extremes. In Europe, courts have afforded minimalist and, as I will argue, too restrictive a protection to religious interests. Whether out of deference to state constitutional traditions or economic interests, they have often undermined the protection of religious freedom. Conversely, in the United States, the Supreme Court has granted a maximalist and, as I will argue, excessive protection to religious interests. The article will demonstrate the flaws of each approach. It will unravel the main three types of bias that underlie these extreme positions, namely the state, the economic and the religious bias.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"12 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141932807","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article investigates how local authorities in England seek to compel property developers to mitigate the impact of property development on local communities and on local infrastructure needs through the use of planning obligations made by agreement with developers pursuant to section 106 of the Town and Country Planning Act 1990. I pose three important new questions about these ‘section 106 agreements’. How do these agreements contribute to a development culture in which private developers do not always perform their public policy obligations? How does the presence of ostensibly binding promises in these agreements facilitate the exercise of regulatory decision-making in planning and property development processes? How do local authorities manage the implementation of novel developer obligations designed to shape broader community relations? I answer these questions by examining two case study development projects. In doing so, I highlight the limited role that these agreements have as an instrument for ordering the ‘private’ relations between a local authority and a developer. I then look outside the private ordering function of these agreements to scrutinise the public-facing work they do. Here, I highlight how a section 106 agreement carries a powerful expressive force, despite its weakness as a private ordering device, that developers and local authorities can use to justify contentious development proposals involving coercive compulsory purchase powers and potentially adverse equalities implications. The article thus adds to what is already known about the use and implementation of planning obligations, and sketches a research agenda that would inform debate about the future of this area of planning practice.
{"title":"Contracting in the Public Interest? Re-examining the Role of Planning Obligations in Contemporary Town Planning Processes","authors":"Edward Mitchell","doi":"10.1093/clp/cuae005","DOIUrl":"https://doi.org/10.1093/clp/cuae005","url":null,"abstract":"This article investigates how local authorities in England seek to compel property developers to mitigate the impact of property development on local communities and on local infrastructure needs through the use of planning obligations made by agreement with developers pursuant to section 106 of the Town and Country Planning Act 1990. I pose three important new questions about these ‘section 106 agreements’. How do these agreements contribute to a development culture in which private developers do not always perform their public policy obligations? How does the presence of ostensibly binding promises in these agreements facilitate the exercise of regulatory decision-making in planning and property development processes? How do local authorities manage the implementation of novel developer obligations designed to shape broader community relations? I answer these questions by examining two case study development projects. In doing so, I highlight the limited role that these agreements have as an instrument for ordering the ‘private’ relations between a local authority and a developer. I then look outside the private ordering function of these agreements to scrutinise the public-facing work they do. Here, I highlight how a section 106 agreement carries a powerful expressive force, despite its weakness as a private ordering device, that developers and local authorities can use to justify contentious development proposals involving coercive compulsory purchase powers and potentially adverse equalities implications. The article thus adds to what is already known about the use and implementation of planning obligations, and sketches a research agenda that would inform debate about the future of this area of planning practice.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"8 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140833157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper foregrounds the defendant as a central actor in trials for mass atrocity. It excavates the practices and scripts of these trials to argue that they are driven by an impulse to construct flat perpetrator portraits. Perpetrators who enter into atrocity’s glass booth are transformed into defendants who are hostis humani generis. Perpetrators who escape this mythification are still viewed as perpetual perpetrators, the moment of their participation in atrocity radiating outwards to demarcate the juridical bookends of their lives. These lives, moreover, are seen as consisting of active choices representing uncompromised agency. The paper suggests that these portraits are tied to international criminal law’s attempt to justify itself as a normative project that claims to act in the name of humanity. It concludes that international criminal law’s aims would be better realized by viewing defendants as equal and engaged members of the community of humanity.
{"title":"Atrocity’s Glass Booth","authors":"Neha Jain","doi":"10.1093/clp/cuae004","DOIUrl":"https://doi.org/10.1093/clp/cuae004","url":null,"abstract":"This paper foregrounds the defendant as a central actor in trials for mass atrocity. It excavates the practices and scripts of these trials to argue that they are driven by an impulse to construct flat perpetrator portraits. Perpetrators who enter into atrocity’s glass booth are transformed into defendants who are hostis humani generis. Perpetrators who escape this mythification are still viewed as perpetual perpetrators, the moment of their participation in atrocity radiating outwards to demarcate the juridical bookends of their lives. These lives, moreover, are seen as consisting of active choices representing uncompromised agency. The paper suggests that these portraits are tied to international criminal law’s attempt to justify itself as a normative project that claims to act in the name of humanity. It concludes that international criminal law’s aims would be better realized by viewing defendants as equal and engaged members of the community of humanity.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"32 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140810991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper compares and evaluates newer laws on sexual assault in Germany (2016), Sweden (2018) and Spain (2022). It focuses on the main challenge for law reform in this field: the complexity of consent-based rules. Before drafting new offence descriptions, the variety of models of consent should be analysed and their advantages and disadvantages considered. Lawmakers should also pay attention to situations that either make consent impossible or endanger the validity of factual consent.
{"title":"The Challenges of Designing Sexual Assault Law","authors":"Tatjana Hörnle","doi":"10.1093/clp/cuae002","DOIUrl":"https://doi.org/10.1093/clp/cuae002","url":null,"abstract":"The paper compares and evaluates newer laws on sexual assault in Germany (2016), Sweden (2018) and Spain (2022). It focuses on the main challenge for law reform in this field: the complexity of consent-based rules. Before drafting new offence descriptions, the variety of models of consent should be analysed and their advantages and disadvantages considered. Lawmakers should also pay attention to situations that either make consent impossible or endanger the validity of factual consent.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"40 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140615713","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As part of its ‘pro-innovation’ approach to artificial intelligence (AI), the UK has left public sector AI procurement and deployment to ‘regulation by contract’ based on thin guidance. Borrowing from the description of AI ‘hallucinations’ as plausible but incorrect answers given with high confidence by AI systems, I argue that this is a ‘regulatory hallucination’: an incorrect answer to the challenge of regulating the procurement and use of AI by the public sector. The pretence that public buyers can ‘confidently and responsibly procure AI technologies’ can generate individual harms and broader negative social effects as the public sector ramps up AI adoption and accumulates a potentially significant stock of AI deployments across all areas of public sector activity. I sketch an alternative strategy to boost the effectiveness of the goals of AI regulation and the protection of individual rights and collective interests through the creation of an independent authority.
{"title":"Responsibly Buying Artificial Intelligence: A ‘Regulatory Hallucination’","authors":"Albert Sanchez-Graells","doi":"10.1093/clp/cuae003","DOIUrl":"https://doi.org/10.1093/clp/cuae003","url":null,"abstract":"As part of its ‘pro-innovation’ approach to artificial intelligence (AI), the UK has left public sector AI procurement and deployment to ‘regulation by contract’ based on thin guidance. Borrowing from the description of AI ‘hallucinations’ as plausible but incorrect answers given with high confidence by AI systems, I argue that this is a ‘regulatory hallucination’: an incorrect answer to the challenge of regulating the procurement and use of AI by the public sector. The pretence that public buyers can ‘confidently and responsibly procure AI technologies’ can generate individual harms and broader negative social effects as the public sector ramps up AI adoption and accumulates a potentially significant stock of AI deployments across all areas of public sector activity. I sketch an alternative strategy to boost the effectiveness of the goals of AI regulation and the protection of individual rights and collective interests through the creation of an independent authority.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"81 1","pages":""},"PeriodicalIF":1.2,"publicationDate":"2024-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140570167","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Countries in the Global South have adopted competition laws and pursued competition policies very similar to countries in the North. This arrangement can be traced to various coercive powers at play—from trading partners in the North, international organizations to development banks, among others. As a result, the adopted laws are often unsuitable to the local needs of the countries in the South and their enforcement policies are often shaped by global pressure. This has alienated countries in the Global South from pursuing competition enforcement policies that could be empowering to their firms, consumers and communities at large. One way to resist and challenge these coercive powers is to pursue alternative competition policies, not alien to the Western nations themselves. In these alternative configurations, competition laws are squared with goals of industrialization and distributive equality. Pursuing these alternative competition goals challenges the dominance of the static model of competition policy aiming to achieve allocative efficiency. Examples from many places around the world are illustrated to show how competition policy, at crucial times of their development, were broadened to encompass an industrial agenda. The latter, more suitable for countries in the South, is discussed as a means of counter-coercion. It is discussed alongside an elaborate program for distribution to assure that the benefits of industrialization do not befall upon only a few. The aim of such a distributive program, built into competition enforcement, is to bring social justice concerns within the purview of competition policy.
{"title":"Competition Law and Policy in the Global South: Power, Coercion and Distribution","authors":"Dina I Waked","doi":"10.1093/clp/cuad011","DOIUrl":"https://doi.org/10.1093/clp/cuad011","url":null,"abstract":"Abstract Countries in the Global South have adopted competition laws and pursued competition policies very similar to countries in the North. This arrangement can be traced to various coercive powers at play—from trading partners in the North, international organizations to development banks, among others. As a result, the adopted laws are often unsuitable to the local needs of the countries in the South and their enforcement policies are often shaped by global pressure. This has alienated countries in the Global South from pursuing competition enforcement policies that could be empowering to their firms, consumers and communities at large. One way to resist and challenge these coercive powers is to pursue alternative competition policies, not alien to the Western nations themselves. In these alternative configurations, competition laws are squared with goals of industrialization and distributive equality. Pursuing these alternative competition goals challenges the dominance of the static model of competition policy aiming to achieve allocative efficiency. Examples from many places around the world are illustrated to show how competition policy, at crucial times of their development, were broadened to encompass an industrial agenda. The latter, more suitable for countries in the South, is discussed as a means of counter-coercion. It is discussed alongside an elaborate program for distribution to assure that the benefits of industrialization do not befall upon only a few. The aim of such a distributive program, built into competition enforcement, is to bring social justice concerns within the purview of competition policy.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"54 10","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135775850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract It seems to be assumed by some that ‘crime is easy’. Not the commission of it, nor the securing of ill-gotten gains from it, but the study, practice, and judging of it. In this paper, I challenge what might be a significant consequence of such an assumption—the systemic impacts on the appointment and deployment of High Court judges and the structure of the High Court. I argue that criminal judging at both first instance and on appeal is distinctive and demands a cadre of expert judges. I explore two core criminal roles performed by High Court Judges—one as a first-instance trial judge trying the most serious offence of murder, and the other sitting in an appellate capacity reviewing applications for leave to appeal from the Crown Court. This leads me to conclude that the current system of recruitment to the King’s Bench Division (KBD) of the High Court fails to guarantee that all KBD judges who sit in crime have the ideal level of expertise in criminal judging to equip them for that role. In turn, this prompts consideration of a range of solutions including, most radically, a proposal for the creation of a Criminal Division of the High Court, and the benefits that might offer.
{"title":"The Need for a Criminal Division of the High Court?","authors":"David Ormerod","doi":"10.1093/clp/cuad010","DOIUrl":"https://doi.org/10.1093/clp/cuad010","url":null,"abstract":"Abstract It seems to be assumed by some that ‘crime is easy’. Not the commission of it, nor the securing of ill-gotten gains from it, but the study, practice, and judging of it. In this paper, I challenge what might be a significant consequence of such an assumption—the systemic impacts on the appointment and deployment of High Court judges and the structure of the High Court. I argue that criminal judging at both first instance and on appeal is distinctive and demands a cadre of expert judges. I explore two core criminal roles performed by High Court Judges—one as a first-instance trial judge trying the most serious offence of murder, and the other sitting in an appellate capacity reviewing applications for leave to appeal from the Crown Court. This leads me to conclude that the current system of recruitment to the King’s Bench Division (KBD) of the High Court fails to guarantee that all KBD judges who sit in crime have the ideal level of expertise in criminal judging to equip them for that role. In turn, this prompts consideration of a range of solutions including, most radically, a proposal for the creation of a Criminal Division of the High Court, and the benefits that might offer.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136294443","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Data protection law is often invoked as the first line of defence against data-related interferences with fundamental rights. As societal activity has increasingly taken on a digital component, the scope of application of the law has expanded. Data protection has been labelled ‘the law of everything’. While this expansion of material scope to absorb the impact of socio-technical changes on human rights appears justified, less critical attention has been paid to the questions of to whom the law should apply and in what circumstances. The Court of Justice has justified an expansive interpretation of the personal scope of the law in order to ensure ‘effective and complete’ data protection for individuals. This article argues that the attempt to make the protection offered by the law more ‘complete’ risks jeopardising its practical effectiveness and raises doubts about the soundness of the regulatory approach to data protection. In the quest for effective and complete protection, it seems that something must give.
{"title":"Complete and Effective Data Protection","authors":"Orla Lynskey","doi":"10.1093/clp/cuad009","DOIUrl":"https://doi.org/10.1093/clp/cuad009","url":null,"abstract":"Abstract Data protection law is often invoked as the first line of defence against data-related interferences with fundamental rights. As societal activity has increasingly taken on a digital component, the scope of application of the law has expanded. Data protection has been labelled ‘the law of everything’. While this expansion of material scope to absorb the impact of socio-technical changes on human rights appears justified, less critical attention has been paid to the questions of to whom the law should apply and in what circumstances. The Court of Justice has justified an expansive interpretation of the personal scope of the law in order to ensure ‘effective and complete’ data protection for individuals. This article argues that the attempt to make the protection offered by the law more ‘complete’ risks jeopardising its practical effectiveness and raises doubts about the soundness of the regulatory approach to data protection. In the quest for effective and complete protection, it seems that something must give.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136294291","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Today’s consumers use a range of cues to identify product origin, including brand names, logos, colours and shapes. The range of registrable marks has therefore expanded, but this brings a risk that features which others have a legitimate competitive need to use will fall under the exclusive control of a single undertaking. Registration may also be used to extend the finite duration of other IP rights that the owner has already enjoyed. Consequently, trade mark law contains functionality limitations on registration designed to protect these competitive concerns. This piece considers how well those limitations are working. The CJEU has also seemed to apply stricter distinctiveness rules to shape marks based on the assumption that consumers are not used to seeing shapes as origin indicators. Some have assumed this means that it is almost impossible to register shape marks—this research examines whether this is really so. How functionality and distinctiveness work in practice is examined through an empirical analysis over a 5-year period of all shape mark applications to the European Union Intellectual Property Office. This piece considers which types of marks are being registered, which are being refused and why. It reveals that distinctiveness, rather than functionality, is having the biggest impact on shape mark registration, and in fact a larger number of shape marks than expected are registered: often because of the addition of non-3D matter. However, are a significant number of marks comprised just of product shapes. It concludes with a discussion of competitive and policy challenges identified by this research.
今天的消费者使用一系列的线索来识别产品的来源，包括品牌名称、标志、颜色和形状。因此，可注册商标的范围扩大了，但这带来了一种风险，即其他人有合法竞争需要使用的特征将落入单一企业的排他性控制之下。注册也可用于延长所有者已经享有的其他知识产权的有限期限。因此，商标法包含了对注册的功能性限制，旨在保护这些竞争问题。本文将探讨这些限制是如何发挥作用的。欧洲法院似乎还基于消费者不习惯将形状视为原产地标志的假设，对形状标志实施了更严格的独特性规则。有些人认为这意味着几乎不可能记录形状标记——这项研究检验了这是否真的是这样。通过对欧盟知识产权局(European Union Intellectual Property Office) 5年期间所有形状标志申请的实证分析，考察了功能性和独特性在实践中是如何发挥作用的。这篇文章考虑了哪些类型的商标正在被注册，哪些被拒绝，以及为什么。研究表明，对形状标志注册影响最大的是显著性，而不是功能性，事实上，注册的形状标志数量比预期的要多:通常是因为添加了非3d物质。然而，有相当数量的商标仅由产品形状组成。最后讨论了本研究确定的竞争和政策挑战。
{"title":"3D Shape Marks: A 360-Degree Analysis","authors":"Ilanah Fhima","doi":"10.1093/clp/cuad008","DOIUrl":"https://doi.org/10.1093/clp/cuad008","url":null,"abstract":"Abstract Today’s consumers use a range of cues to identify product origin, including brand names, logos, colours and shapes. The range of registrable marks has therefore expanded, but this brings a risk that features which others have a legitimate competitive need to use will fall under the exclusive control of a single undertaking. Registration may also be used to extend the finite duration of other IP rights that the owner has already enjoyed. Consequently, trade mark law contains functionality limitations on registration designed to protect these competitive concerns. This piece considers how well those limitations are working. The CJEU has also seemed to apply stricter distinctiveness rules to shape marks based on the assumption that consumers are not used to seeing shapes as origin indicators. Some have assumed this means that it is almost impossible to register shape marks—this research examines whether this is really so. How functionality and distinctiveness work in practice is examined through an empirical analysis over a 5-year period of all shape mark applications to the European Union Intellectual Property Office. This piece considers which types of marks are being registered, which are being refused and why. It reveals that distinctiveness, rather than functionality, is having the biggest impact on shape mark registration, and in fact a larger number of shape marks than expected are registered: often because of the addition of non-3D matter. However, are a significant number of marks comprised just of product shapes. It concludes with a discussion of competitive and policy challenges identified by this research.","PeriodicalId":45282,"journal":{"name":"Current Legal Problems","volume":"300 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134944391","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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