The aim of this paper is to define the scope of protection afforded to ‘marks with reputation’ under EU Directives and Regulations. The authors argue that the protection granted to said marks also in relation to ‘not similar’ goods requires that, having regard to all the circumstances of the specific case, the consumer could be induced to reasonably suppose that the trade mark owner is somehow (industrially or commercially) connected with the circulation of products bearing an identical or confusingly similar sign. If this possibility cannot be assessed, it should be denied that the use of that sign either brings an unfair advantage to the third party user, or is detrimental to the distinctive character or the repute of the renowned trade mark. In sum, the thesis here submitted states that the protection afforded to renowned trade marks, even ‘extra moenia’ (ie beyond the risk of confusion in a strict sense between the products), anyway presupposes that a misleading message is conveyed to the consumer, inducing her/him to ‘transfer’ the reputation of the latter's products to those of the third party user's products, with the effect of altering the consumer's purchasing choices.
Gustavo Ghidini and Giovanni Cavani
During the past decade, China has learnt from the experience of the United States and developed a series of legal instruments to address the digital challenges of massive copyright infringement. These efforts have established a joint tort liability system under which network service providers (NSPs) share joint liability with direct infringing users under certain conditions. Under this system, NSPs bear aiding or abetting liabilities which correspond to the United States’ contributory and inducement liabilities. However, when facing peer-to-peer (P2P) technology, the fault-centred approach manifested in knowledge is not only difficult to prove but also overlooks objective factors. Moreover, general tort law principles are sometimes set aside in adjudicating cases concerning indirect copyright liabilities.
This article examines authorization liability in the United Kingdom, finding that this approach is underpinned by traditional tort law theory and more integrated in adjudicating P2P cases. It requires a spectrum of consideration consisting of two-step analysis: conceptual analysis and multi-factor analysis. This research proposes that while maintaining the current dichotomy framework of copyright liabilities, the UK authorization liability approach provides a valuable lesson, especially in regulating P2P technologies in China.
Yo Sop Choi and Andreas Heinemann
The rapid development of the ‘New Economy’ on a global scale has brought new issues of competition law, one of them concerning the licensing of standard essential patents (SEPs). Standardization allows interoperability and compatibility and thus enhances not only static but also dynamic efficiency. However, the procedures in standard setting organizations (SSOs) may not be used to unduly restrict competition. In Asia, for example, most competition regimes have highlighted their focus on fair and free competition, making clear that the field of SEP is no exception. Recently, the competition authorities in Korea and China have concluded that a breach of ‘fair, reasonable and non-discriminatory (FRAND)’ commitments may constitute violations of their competition rules, apparently taking inspiration from the case law in the EU. Therefore, it seems overdue to look at recent developments in competition law and policies on SEP and FRAND worldwide and to enquire into the divergence and convergence of competition law in selected jurisdictions. Despite considerable differences, a common feature of all competition regimes discussed in this article is that their goal is to keep markets in the information and communication technology sector as open as possible, including – and especially – with respect to standard-setting procedures.