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Adaena Sinclair-Blakemore, Emraan Azad and Ahmed Farooq

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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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Enrico Bonadio*, Nicola Lucchi and Oreste Pollicino

As is known, new technologies have profoundly changed the way content is produced, shared and disseminated. One of the most recent (and worrying) changes is the phenomenon of ‘fake news’, especially since disinformation and intentional misrepresentation of real information have started to affect individual decision-making in the political sphere. It is a worrying phenomenon because the dissemination of fake news can challenge democratic values and undermine national security.

Against this background, can copyright play a role in the fight against fake news? And what is the relationship between such news and copyright in the first place? Fake news in theory falls within copyright subject matter and may often meet the requirements for protection. The paper analyses three recent examples of fake news which have been widely disseminated online – and makes the point that copyright may subsist in such news. Yet, despite such content being potentially capable of attracting protection, we propose to remove any copyright which may arise on grounds of public interest. Indeed, when a work is protected by copyright, right holders have an incentive to exploit it, as the monopoly granted to them increases the ability to extract profits out of the work, for example via licensing. This may contribute to encouraging creators of fake news to spread such content across multiple channels to reach wide audiences. Excluding copyright could therefore help make fake news less appealing. A short reference will also be made to copyright defences which may be relied on by entities and individuals who check news’ accuracy (fact-checkers) – that is, the fair use doctrine under US law and several exceptions under EU (and UK) law, namely transient use, text and data mining, criticism and review and public security.

* All authors contributed equally to this manuscript and are listed alphabetically.

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Mary Crock and Zoe Nutter

As the COVID-19 pandemic spread around the globe, many millions of students found themselves trapped in foreign countries, far from home, with situations degenerating quickly. Despite the significant contribution these students make to the gross domestic product of host countries through student fees and participation in local labour markets, these temporary migrants were often excluded from any significant government supports. The plight of these (predominantly young) foreign scholars and trainees begs the question of the role international law does or should play in ensuring their security and wellbeing in disaster settings. This paper critically examines the protective reach for students of existing civil and human rights instruments, including conventions by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Labour Organization (ILO). In identifying gaps and unmet needs in the legal regimes, its aim is to open discussion about the value of creating binding standards to address the unique needs and predicaments of foreign students. Just as many of the world’s most significant international instruments were created in response to global conflicts and disasters, the authors argue that COVID-19 presents the world with a real opportunity to reflect meaningfully on who has been left behind in the struggle to survive this truly global disaster. Internationally mobile students are particularly worthy of consideration because of the human capital they represent.

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Mo Abolkheir

The author’s 2019 article ‘If You Wish to Invent Then Follow the Half-Causation Method’ presented ‘Half-Causation’, which is a philosophical model for the systemization of the invention process. It consists of five phases of reasoning, each terminating with taking a ‘logical branch’. This paper has two objectives. The first (and preliminary) objective is to introduce a readership in patent practices (and theory) to Half-Causation. The second (and primary) objective is to highlight how Half-Causation can be practically useful to patent practitioners (and perhaps ultimately theorists), specifically in terms of enlightening the drafting of patent claims. In order to do this effectively, the reader is presented with a case which they can engage with to see for themselves how Half-Causation can help, step by step. The presented case was the subject of the USPTO’s 2019 patent drafting competition. It consists of rather convoluted instructions received from an ‘imaginary’ client about their ‘imaginary’ invention. The case is an excellent opportunity to illustrate how Half-Causation as a philosophical model can be practically useful. Two Half-Causation tools are implemented.

The first is Half-Causation Branching, which allows the logical mapping of the inventing space, within which the imaginary invention is located. Implementing this tool reveals two alternative nearby inventions, which if left out of the sought patent protection would render any eventually granted patent practically worthless. Following that, Half-Causation Encapsulation comes to the rescue by allowing the encapsulation of the original imaginary invention, plus the two alternative nearby ones, all in a manner that provides the all-important unity of invention

On the one hand, patent agents are not supposed to contribute to their client’s inventive concept to the extent that they become co-inventors. On the other hand, scientists and engineers are not supposed to dedicate so much time and effort to learning about complex patent laws as to become patent agents. Arguably, each should aim to excel in their discipline. However, a structured dialogue should be considerably helpful to each and to the patent process as a whole. It is proposed that Half-Causation, with its logical structure, can provide a basis for such a dialogue.

Besides targeting a readership in patent practices and theory, this paper should be of interest to multiple readerships, for example in engineering design, medical discovery and philosophy of technology.

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P Sean Morris*

While the debate on intellectual property and international investment law is relatively young, the role of historical cases will be important in offering some interpretative analysis. Due to the niche nature of both areas of law, where, often times, the legal luminaries found in both areas often speak past each other, in an earlier issue of this journal I offered an interpretative history of Chorzów Factory as an example of early case law by an international court illustrating the origins of the ISDS involving intellectual property. As with any interpretation, there are bound to be opposing views or explicit endorsement, but whatever the merits, that interpretative history has initiated a debate in the pages of this journal. That debate is in part, a response to my original analysis, to which I offer a response. This response is to endorse the fact that additional information has come forward that will enrich the debate on Chorzów Factory and its connection to intellectual property. Moreover, this response argues that the reply misses the point regarding the formal connection of international law to intellectual property in ISDS, a connection that I attempted to demonstrate through the example of the Chorzów Factory case – where a legal fight in the 1920s over nitrate, other chemical production and ownership still continue to be of relevance to international law.

* Email: sean.morris@helsinki.fi

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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.