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Fiona Macmillan

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Rob Batty*

Several high-profile rebrands, including those by Twitter and Starbucks, have involved removing text from logos. This move towards wordless, pictorial trade marks raises a difficult question about how the scope of protection of a registered trade mark should be determined. This article examines the particular issue of how much weight should be given to the idea or concept underlying a pictorial mark when assessing whether a defendant’s junior mark is ‘confusingly similar’. Drawing on legal principles and case examples from Europe, the United Kingdom, Singapore and New Zealand, it is claimed that courts and adjudicators should be careful not to overweight conceptual similarity. It is argued that a lack of care in assessing conceptual similarity risks awarding one trader overbroad protection, which may be tantamount to conferring on one trader a monopoly in an idea. A lack of care may also undermine the logic of a registration system by untethering protection from what is recorded on the Register, and may make trade mark law less predictable and certain.

* The author declares that he was junior counsel in a case discussed in this article, Carabao Tawandang Co Ltd v Red Bull GmbH HC Wellington CIV-2005-485-1975, 31 August 2006. The views represented in this article are the author’s own, and do not reflect the views of his employer at the time, or the views of the client represented in that particular case.

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Rebecca Brown

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Malgosia Fitzmaurice

This article analyses the question of Indigenous peoples’ identity through the lens of Martha Fineman’s theory of vulnerability and human rights law. Answering questions of Indigenous identity is a difficult and complex endeavour, and is subject to many considerations, including individual, collective, internal and external perspectives. The theory of vulnerability of Martha Fineman provides the author with a prism through which to examine Indigenous identity and inequality across the social, economic, cultural, environmental and political spectra in the Indigenous peoples’ context, and permits the elaboration of a normative pathway to inform legal responses able to compensate for situations of inequity. In the author’s opinion, Fineman’s theory of vulnerability provides an innovative perspective from which to engage in the epistemological, analytical and normative legal analysis that is required, with the aim of supporting the resilience of the Sami peoples at the collective and individual level. The debate within the paradigm of human rights is based on the premise of the existence of different groups with different identities within States (such as minority groups and Indigenous peoples). The recognition of different rights defined internationally and constitutionally has resulted in the possibility for these groups of recognition of their specific cultural traits.

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Emmanuelle Sarlangue

This article aims at demonstrating how and why registered Community designs should be integrated into the video game industry’s intellectual property strategy. Although the validity of virtual designs has not yet been tested before courts, registered designs adequately address the issue of clone gaming faced by the industry. Some minor changes to the EU legal framework could contribute to balancing out the perceived legal uncertainty surrounding this intellectual property right.

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Simon Chesterman

The answers each political community finds to the law-reform questions posed by artificial intelligence (AI) may differ, but a near-term threat is that AI systems capable of causing harm will not be confined to one jurisdiction; indeed, it may be impossible to link them to a specific jurisdiction at all. This is not a new problem in cybersecurity, though different national approaches to regulation will pose barriers to effective regulation exacerbated by the speed, autonomy and opacity of AI systems. For that reason, some measure of collective action is needed. Lessons may be learned from efforts to regulate the global commons, as well as moves to outlaw certain products (weapons and drugs, for example) and activities (such as slavery and child sex tourism). The argument advanced here is that regulation, in the sense of public control, requires the active involvement of States. To coordinate those activities and enforce global ‘red lines’, this paper posits a hypothetical International Artificial Intelligence Agency, modelled on the agency created after the Second World War to promote peaceful uses of nuclear energy, while deterring or containing its weaponisation and other harmful effects.

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Gaetano Dimita, Jon Festinger, Yin Harn Lee, Michaela MacDonald and Marc Mimler

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Nima Lorjé and Ariela Stoffer

Commission inspections pursuant to Article 20(4) of Regulation 1/2003 (i.e. dawn raids) interfere with the privacy rights of companies and individuals. This interference is disproportionate when it is not consistent with the requirements laid down in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for Human Rights. In its recent judgments in the French Supermarkets cases, the General Court partially annulled four Commission inspection decisions for constituting an arbitrary and unjustified interference with the privacy rights of the inspected companies. The General Court found that the Commission had initiated inspections without having sufficiently serious evidence in its possession. This article examines this finding of the General Court and its practical implications for the protection of companies’ privacy rights in the context of dawn raids. In addition, this article examines possible remedies for challenging the seizure and copying of documents containing personal information of raided companies’ staff during a dawn raid.

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Peter Honer

2019 has seen loot boxes remain a prime target of concern for regulators, legislators and industry bodies alike, yet despite the work carried out in the Gambling Regulators European Forum in this regard, there have been no substantial efforts to develop a common EU response to date. This article aims to argue that such inaction at a European level is unsatisfactory from both the perspective of the European consumer and games companies alike, while highlighting that any broad regulatory attempts to limit loot boxes to date should be viewed with scepticism.

Having examined the three main approaches that could form the basis of a common EU response (gambling law, self-regulation and consumer law) that could deal with some of the issues that national fragmentation in the field have presented to date, it is submitted that a hybrid system, which draws together principles from these three main approaches, can strike the right level of balance between protecting innovative monetization systems for developers, whilst safeguarding consumers from practices deemed to be ‘predatory’.