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The term ‘distinctiveness’ is used in trademark law to refer to the capacity of a trademark to distinguish the goods of one undertaking from those of other undertakings. The importance of this concept can be seen in Article 15 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which provides that any sign having distinctiveness shall be capable of constituting a trademark. Gradually, ‘distinctiveness’ has come to be used to describe the distinguishing capacity of other distinctive signs, including geographical indications (GIs). This article explores the distinctiveness of GIs. It begins with a discussion of the meaning of GI distinctiveness in the different GI protection contexts to reveal its particularity compared to the traditional concept of trademark distinctiveness. The second part of the discussion shows, however, that the concept of GI distinctiveness is not given sufficient importance in the protection of GIs, and is confused with the distinctiveness of collective or certification marks. This article therefore calls for an approach that recognizes the importance and the particularity of the distinctiveness of GIs in the design of GI protection mechanisms.
The author is grateful to the editor and anonymous referee for their valuable comments.
Geographical indications have played a central role in the protection of handicrafts, and agricultural and manufactured goods in India. Numerous goods are already registered as geographical indications and many more are in the pipeline to be registered. This article analyses the products which have been registered so far and finds that there are certain issues raised by Indian GI protection, to which it puts forward various solutions.
Michael Blakeney and Getachew Mengistie
This article examines continental, sub-regional and national initiatives in the formulation of intellectual property policy Africa. The article is divided into seven parts. The first looks at the relationship between IP and economic development. The second part examines the role of IP regional integration and trade. The third part looks at African regional trade agreements. Next, the article surveys the activities of sub-regional IP systems in Africa: the African Regional Intellectual Property Organization (ARIPO) and the Organisation Africaine de la Propriété (OAPI). The fifth part looks at the recent formation of the Pan African Intellectual Property Organization (PAIPO) and its relationship with ARIPO and OAPI. The sixth part gives a brief overview of the efforts made in designing national IP polices. The concluding section summarizes the IP policy-making process in Africa.
Professor Sterling's CCLS colleagues at Queen Mary University of London
Thomas Y Lu
What are the further developments on pay-for-delay agreements following Actavis, the case decided by the US Supreme Court regarding a pay-for-delay dispute in 2013? We surveyed 17 pay-to-delay deals involving brand-name drug owners and generic companies to see how their deals were structured in light of Actavis, as well as the results of follow-on court cases involving such contracts. As a result, we posit here that a no-Authorized Generic (AG) provision, the clause in a pay-for-delay agreement that asks the company making the brand-name drug not to launch its own generic drug in the market, occurred in almost half of the deals in our survey. More importantly, we found that the judges in cases following Actavis did not establish a framework to analyse whether pay-for-delay payments were large and unjustified. Therefore, the judges could not adequately explain why a given pay-for-delay agreement may have been anti-competitive under the rule-of-reason test under Actavis. Through these findings, we inferred that drug manufacturers should be able to avoid including no-AG provisions in their settlements. Finally, we predicted that antitrust agencies and courts would achieve a stronger interpretation of ‘large and unjustified payments’ if they unified the analytical framework for pay-for-delay agreements.
This article aims to contribute to the copyright debate concerning Artificial Intelligence (‘AI’) creations. AI-created works could and should be protected by copyright law. However, existing answers to the issue of allocation of authorship remain somewhat unsatisfactory. A reasonable and practical solution to this issue, fortunately, could be established upon the doctrine of ‘authorship transfer’ (the initial transfer of authorship from the actual creator to a constructive author) in modern copyright law. The ‘control of the creative process’ theory can provide a reasonable and justifiable explanation of ‘authorship transfer’. The person, either a natural or a juridical one, who has exercised sufficient control over the creative process, should be constructed as an author of the outcome. This theory is quite flexible before the ever-changing AI technology that challenges copyright law. For AI-created works, the authorship is better transferred to a person behind the AI who had control over the creative process in order to safeguard the current copyright system and its founding principles.
Zheng Sophia Tang
Validity is frequently raised as an issue in patent infringement proceedings, either as a defence or as a preliminary question. Where a court may hear a dispute in relation to infringement of foreign patents, whether the court could and should adjudicate their validity is controversial. This article examines five approaches to this matter. It concludes that none of these approaches is perfect and that there is a lack of evidence-based assessment as to their efficiency. It then moves on to discuss the similar jurisdictional segregation which occurs between validity and infringement at the domestic level in those countries which have adopted a bifurcation system of patents. It suggests that measures adopted domestically may shed light on the international conflict, and that courts should consider factors exceeding those ordinarily considered by international lawyers. A jurisdiction ‘matrix’ is proposed, aimed at providing a pragmatic solution. It grants the court on infringement the initial power to screen the likelihood of success of the infringement claim and then the validity defence, taking into account the accuracy of decision, expertise, chances of success, sound management of justice and deterrence of torpedo defences, before making a decision on validity jurisdiction.