Internal Competition and External Diplomacy
Chen Wei Zhu
Ambush marketing, sometimes also known as guerrilla marketing, comprises attempts to create an unauthorized association with mega-sporting events (such as the Olympic Games and the FIFA World Cup) without obtaining official sponsorship agreements. This article contends that the contemporary law of sports sponsorships against ambush marketing harbours a palpable but much-neglected sumptuary impulse, which has never before been adequately scrutinized. It shows that pre-modern sumptuary law strangely resonates with modern anti-ambush law's sumptuary obsession with the visual order of symbols and images as prestige signifiers. It also reveals an ongoing ‘intellectual property’ turn in the recent development of sumptuary anti-ambush law-making, whose ambition is to reify sports-derived sumptuary distinction into a thing-in-itself for nearly absolute ‘property’ protection. My argument is illustrated by a carefully selected number of ambush disputes including Australian Olympic Committee (AOC) v Telstra, which represents the latest development in this field of law.
Charles Lawson, Michelle Rourke and Fran Humphries
The global movement and use of genetic resources remain vital to sustaining humankind. An enclosure or re-appropriation of these resources requiring regulated access and benefit sharing is evolving under the United Nations' Convention on Biological Diversity and related instruments. The potential to replace the physical materials with information about those materials, including genetic sequence data, has fractured the carefully negotiated benefit sharing regulation complex. This article re-engages with this original grand bargain of access in exchange for benefit sharing, and the imperatives of transferring financial resources and technology from the technologically advanced countries of the North to the biodiversity-rich countries of the South. Public access database terms and conditions (as opposed to public domain) and collecting societies are some of the elegant legal solutions and mechanisms to address concerns about dematerialization under the current contractual approach to benefit sharing. This article concludes, however, that the tension between enclosure of information as the genetic resource and legal information sharing requirements needs more nuanced forms of benefit sharing such as taxes or levies. This is necessary to facilitate movement of not only the physical materials but also information in the access and benefit sharing bargain.
Traditionally, trademarks convey source information to consumers through the use of words, letters, or numerals. The types of signs that are nowadays considered as being capable of constituting a trademark have expanded beyond words or figurative devices. Although non-traditional trademarks have received wide acceptance in many jurisdictions, the hurdle for obtaining registration appears to be higher than for traditional marks. Two issues have figured predominantly in the debate over protection for non-traditional marks: distinctiveness and functionality. Applications for non-traditional trademarks in China have given rise to a number of judicial decisions. The jurisprudence in China has taken a cautious approach in making decisions on a case-by-case basis, depending on the kind of mark in question. After a brief introduction to non-traditional marks, section 2 interprets the trademark definition in the China Trademark Law and reviews the extent to which non-traditional marks might be protected under the existing laws. Sections 3, 4, and 5 present a comprehensive and systematic analysis of the functionality and distinctiveness issues for three-dimensional marks, colour marks, and sound marks. Finally, the Conclusion highlights the main problems in the protection of non-traditional trademarks and proffers solutions for analysing distinctiveness and functionality issues for non-traditional marks.
Regulatory exclusivity, the TRIPS-plus protection for undisclosed test data, is considered as the principal means to extend market protection for brand-name pharmaceutical companies. When China joined the World Trade Organization in 2001, it promised to enact new laws or regulations that will comply with article 39.3 of the TRIPS Agreement. China's choice of implementing the TRIPS Agreement through regulatory exclusivity resulted mainly from intrinsic demands for China's strategy of innovative-driven development, and partly from the pressure of China-US trade disputes. There are two categories of regulatory exclusivities under China's laws. One is the market exclusivity for New Drugs and Traditional Chinese Medicine. The other is the data exclusivity for Innovative Drugs, Orphan Drugs, Paediatric Drugs, Innovative Biologics; and a ‘Generic Exclusivity’ for the first generic drug company that succeeds in challenging weak patents of pharmaceutical products.
Ayoyemi Lawal-Arowolo and Dorcas A Odunaike
The birth and development of performers' rights was initially witnessed in the twentieth century. Domestic laws and international conventions were drafted and implemented in various countries and the international community. Nigeria has followed a similar trend in the development of performers' rights by providing provisions protecting these rights. Equally, Nigeria has signed and ratified international treaties providing for the protection of performers' rights. However, there are issues relating to performers' rights that have not been given consideration. A broader system of protecting traditional performances with spiritual and social components is required. Purely spiritual festivals such as the Oro festival is guided by custom which must not be disregarded as a means of protection. Only worshippers or devotees are allowed to be a part of the festival. Strangers and women are forbidden to see the procession and when or if they do, the consequences are grave. Conversely, the Eyo, Atilogwu, Tengra and Osun Oshogbo festivals are spiritual festivals with social components that are not rigidly protected by custom, neither are the performances considered for protection in related rights in Nigeria. Such performances are littered on the internet by those who attend the festivals from various parts of the world. While the extent to which performers are protected in the Copyright Act of Nigeria should be commended, more should be done.
The ‘cluttering’ of trade mark registers with unused trade marks is an issue of contemporary concern. One mechanism that can be used to prevent ‘deadwood’ trade marks from getting on the Register in the first place is to ensure that a trader has a genuine intention to use the trade mark. Indeed, the enactment of the first registration legislation in the United Kingdom (UK) was followed by a judicial insistence that a trader could not ‘properly register a trade mark’ if the trader did not have bona fide and present intention to use the trade mark. An intent to use requirement remains a feature of New Zealand (NZ) law, though it has a much reduced sphere of operation under the Trade Marks Act 2002. Tracing historical developments, this article examines how the regulation of the intent to use requirement has evolved under NZ law. This exercise provides a useful lens for understanding how and why the intention to use requirement operates as it currently does. Further, by examining the history of the intent to use requirement, the article also illuminates that there is nothing intractable about how NZ trade mark law has opted to regulate intention to use, and NZ law may be adjusted to better address concerns like cluttering.