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Ansgar Ohly

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Ansgar Ohly

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Ansgar Ohly

While the mothers and fathers of EU design law were keenly aware of the marketing function of designs, they underestimated the potential for overlaps with trade mark and unfair competition law. From a semiotic perspective, distinguishing between the communication channels created by product shape trade marks and by product designs is next to impossible. EU and US trade mark law provide different exclusionary rules which aim at preventing eternal protection of designs through trade mark registration, but none of these approaches is entirely satisfactory. In unfair competition law, courts have the tendency to find misrepresentation as to source when designs are imitated and tend to frown upon imitation, even if designs become a part of the public domain after the expiry of the design right. This chapter proposes a combination of time-limited full design protection and a market-sensitive rule permanently proscribing actual confusion while excluding remedies against pure misappropriation or “constructive confusion” after the expiry of design protection.

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Ansgar Ohly

As the implementation deadline for the Directive (5 July 2018) fell before the impending date of exit from the European Union, it was thought to make sense actively to enact harmonizing measures in intellectual property law. The regulations were likely to focus on those areas that require clarification and alignment: the definition of trade secret; the definition of prohibited acts (unlawful acquisition and infringing goods); lawful acquisition; and enforcement measures relating to damages and so-called springboard injunctions. The UK was expected to use its judicially developed action for breach of confidence as the main vehicle to implement the Directive, together with the proposed regulations covering these specific issues. 

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Ansgar Ohly

The link between trade marks and innovation is less obvious than the role of patents as incentives for technological progress. But trade marks do play an essential role in a market economy. They create ‘channels of communication’, without which consumers could not make reliable distinctions between competing products and services. This information asymmetry would also undermine producers’ incentives to offer high quality and high image products. While the positive economic effects of protection against confusion seem to be generally accepted, the merits of antidilution and antimisappropriation provisions are less certain. Sometimes trade marks can even create obstacles to innovation. This chapter argues that policy makers and courts should be aware that trade marks are not fully fledged property rights over words or devices, and that their protection should remain restricted accordingly.

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Ansgar Ohly

Intermediaries “typically do not use the suppliers’ trade marks as signs for their own services or in their own advertisement, but they enable others to use and, potentially, to infringe trade marks. There is, however, no clear and bright line between primary users and intermediaries.” There are two challenges to better defining this distinction, “[f]irst, the law must balance the interests of several actors,” and “[s]econd, there is a broad range of intermediaries.” Courts must consider the tension between competing interests of certainty and flexibility that come from different doctrinal approaches.

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Ansgar Ohly

The flow of information is not stopped by borders. The World Wide Web is global, hackers can as easily attack computer systems abroad as they can domestically, cross-border-cooperation is as commonplace as it is risky, and employee mobility also means that former employees can be enticed to disclose secrets of their former employers to a competitor in another country. In all these cases, a court faced with a claim for trade secret misappropriation must decide whether it has jurisdiction to adjudicate the dispute and determine the applicable law.