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Friday, 19 June 2009

The first Sir Hugh lecture: an eye-witness report

This member of the IPKat team has been so tied up of late that he sadly had to miss the inaugural Sir Hugh Laddie lecture, delivered earlier this week by that great figure in British appellate IP jurisprudence, Lord Hoffmann. The Kat's correspondent ("an anonymous fan") writes:

"Lord Hoffmann delivered a suitably stellar (and including as it did, personal reminiscences, touching) inauguration to the annual Sir Hugh Laddie lecture series to a packed house at the UCL Institute of Brand and Innovation Law, offering a witty and incisive discussion of Sir Hugh's complicated (to use a modern and youthful colloquialism) relationship with the ECJ on the subject of trade marks.
The South African sage noted how, in Wagamama, things had actually got off to a great start, what with Advocate General Jacobs' subsequent express endorsement in Puma v Sabel of Sir Hugh's finding that that the function of a trade mark is as a badge of origin, not to mention the definitive rejection in that case of Benelux notions of assessment of likelihood of association. His Lordship wryly observed that relations obviously weren't as cosy on the consent issue in Davidoff and how they really reached their low point in Arsenal on the badge of origin issue.
Commenting on Arsenal, Lord Hoffmann dryly noted that while Sir Hugh's ingenious rejection of what Sir Hugh saw as meddling by the ECJ in the fact-finding jurisdiction of the national court was not necessarily a constitutional crisis, it was "an uncomfortable quarter of an hour." He pointed to the widening gap between Sir Hugh's personal views on trade mark functions and those of the ECJ in the pharmaceutical repackaging cases but admired Sir Hugh's rigour in applying the law on the issue as it developed, whatever his personal reservations.
Lord Hoffmann expressly agreed with Sir Hugh's overriding jurisprudential insistence that monopolies must be in the public interest. It was not obvious that the developing ECJ jurisprudence on the function of trade marks comported with this view. He added that good legislation does not lead to a lot of litigation. Unclear legislation does. Lord Hoffmann suggested that ,as a result of lack of clarity at the ECJ level on the proper role of the trade mark, the law under the Trade Marks Act 1994 has become, in contrast to its 1938 pre-decessor, a maze of arcane dicta. It was fertile ground for litigation. The law in this area was, in effect, a mess. He seemed particularly sympathetic to Sir Hugh's firm view that the badge of origin function must not be high-jacked to confer a quasi-copyright and that, notwithstanding repeated insistence to the contrary, the trend of ECJ jurisprudence seemed to be doing just that.

Lord Hoffmann ended the lecture with a plea for clarity in the area. It will be interesting to see how this plea is received and indeed, how much enthusiasm there is among stakeholders for such clarification!"
The IPKat is indebted to his informant for this information. Merpel however challenges this account: she recalls that his Lordship was making a plea for "claret", not clarity -- to be enthusiastically received by steak holders.

1 comment:

Anonymous said...

Thank goodness the ECJ can't set patent law. Let's leave the Brits, the Dutch and the Germans to work it out in their respective national supreme courts, nudged along by the EPO, and the customers to choose their forum, shall we? look at what's happening recently to novelty in Germany. Clarification. Harmony at long last.

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