The first issue for 2006 of Sweet & Maxwell's scholarly Intellectual Property Quarterly has now been published. At £322 for a year's subscription (that's £80.50 per issue), you're paying quite a lot for 71 pages. But the content is good. Among other features there's
* a thoughtful piece by Jonathan Griffiths (Queen Mary, University of London) entitled "Misattribution and misrepresentation - the claim for reverse passing off as 'paternity' right". Reverse passing off is where a claimant objects that the defendant has not represented that the defendant's goods are those of the claimant but that the claimant's goods are those of the defendant. This doctrine has been recognised in UK law but on an ad hoc basis and it cries out for a firm doctrinal footing if it is to be properly understood as a tort.
* "On the Value of Copyright Theory" by the University of Leicester's Lior Zemer.
Left: an IPQ contributor pauses to consider another philosophical point.
The IPKat has sometimes been sceptical about the use of theoretical contructs in legal analysis, but he agrees with Lior's stance that "Inviting theory into discussions on the future of copyright laws does not mean declaring the end of copyright or the death of the author". Theory is a means of advancing debate; it is not however an end in itself.
Merpel asks, can theory - which itself is extrapolated from reality - ever possess a greater degree of 'reality' than the reality of the real world from which it was drawn ... Ah, says the IPKat, it all depends on what you mean by 'reality': surely there is no reality but just the perception of reality. And you can perceive it through the senses (through sight, sound etc) or conceptually (through theoretical constructs).
The Intellectual Property Institute is organising a seminar on "Database Right: Implications of the ECJ and Court of Appeal Judgments in British Horseracing Board v William Hill" on Wednesday 15 March 2006. It's absolutely free and registration begins at 4.30pm.
The event is hosted by law firm Addleshaw Goddard (Venue: 150 Aldersgate Street, London EC1A 4EJ). The speaker is Hamish Porter (left, himself of Addleshaw Goddard), the chairman is Catriona Smith (Allen & Overy). If you're going. just let IPI administrator Anne Goldstein know.
A sudden, startling idea
Sitting in the C5 International Trade Marks & Designs conference in London yesterday IPKat co-blogmeister Jeremy had a sudden thought. It occurred to him that
Now, what Jeremy wonders is this: can a judge, in the exercise of his case management powers, order the parties in an IP dispute to share the same market survey on the basis that they must agree, within a reasonable period, the questions to be asked of the relevant consumer? If no such agreement is struck, the judge would then appoint a market surveyor himself. Comments, please, either below or by email.
(i) in many countries, including England, market survey evidence of consumer confusion or consumer responses to brand images is often discarded by the court on the ground that it is unsound and unreliable;
(ii) sometimes both parties in a dispute commission their own surveys, which means that the court is faced with two sets of methodologies and two sets of findings;
(iii) since the great shake-up of the Civil Procedure Rules, courts in England and Wales have been given much greater case management powers;
(iv) the courts rarely seem to test their case management powers out very much, perhaps because of innate caution or perhaps because they just weren't brought up with them and find the concept alien.
Left: when exercising their case management powers, judges set aside the wig and gown for the comfort of more informal wear
More on market survey evidence here and here