Regarding the US, Hugb considered the role of the Federal judge, the generation of weak rulings and the lack of policing of trade mark decisions by the Supreme Court. Hugh distinguished between rules and standards; the former are difficult to get around, while the latter are not.
Why should anyone want to become a Federal judge, Hugh asked. Not to follow precedent, it seems, but rather to give back to the public and to society their acquired wisdom as to what should be done and what is just. This is their "natural inclination", as is their desire not to have their decisions reversed.
What is the culture of the Federal courts? All three levels -- district, Court of Appeals and Supreme Court each have their own culture, shaped by the kind of role it plays and the self-perception of the judges who staff them. District court judges have a heavy work load, including administrative chores, with little assistance -- but they are living with the facts, they see who gets hurt and who are the good guys and who are the bad ones. They sense things like "free-riding" and it affects their decision-making processes.
|Sir Winston and his gesture:|
registrable as a trade mark?
Moving on to the Court of Justice of the European Union (CJEU), Hugh went right back to the Treaty of Rome and the court's initial role and to the CJEU judges' lack of suitability to handle trade mark law.
Considering their lack of aptitude they do quite well, he conceded. Hugh then contrasted the experience of the UK and the Benelux when it comes to aligning their trade mark doctrines with that of the CJEU, where the UK has shown a greater willingness to adjust to CJEU norms while the latter has treated EU law as an extension of its own pre-EU case law. Hugh then cited some examples, relating to the registration of single letters and colours, as examples of lack of apparent clarity in following CJEU rulings. He closed by alleging that there was a general European outcry over the CJEU's Baby-Dry case and that the Europeans would get rid of that court in a moment if they only could.
Peter Ruess (Arnold Ruess, Duesseldorf) was then asked to comment on the European side of things. Said Peter, the CJEU and the German courts have far more trade mark judges and cases to hear than in the US. The two continents' systems are so different that it's not possible to compare them.
This blogger then pitched in with an impassioned defence of the position in Europe. We have had to shed a history of separate national trade mark cultures in order to adopt a new order, and we're getting there, he said. The CJEU may be manned by judges with insufficient knowledge of commercial issues, but as an institution it's doing just fine: its decisions may be poor but they're easy to follow -- and it can reverse and correct its earlier decisions if needed.
Managing Intellectual Property editor James Nurton, after confessing his desire to be a judge on the Second Circuit, was also broadly supportive of the position in the EU. At trial level, he observed, citing Dirk Visser's Kay Uwe Jonas memorial speech earlier this year, judges judge on the basis of their instinct.
From the floor, OHIM Board of Appeal member Gordon Humphreys confirmed that things have changed: OHIM has developed a convergence policy and has a "living tool" in its feedback loops for filtering CJEU decisions into examiners' decision-making processes. Spyros Maniatis (Queen Mary, University of London) then reminded us that the CJEU has to adopt a "Lego-like" approach in developing its jurisprudence since it can only answer the questions that are referred to it.