1,721,014 research outputs found
The why of geographical indications: The transformation of the link between the product and its place of origin in Europe
Get PDFThis thesis explores the historical evolution of the nature of the link between a product and its place of origin in the European sui generis systems of GI protection, with a specific focus on the EU Regulation 1151/2012 on Geographical Indications for the protection of agricultural products and foodstuffs. It concludes that this link has substantively changed, since the 1930s, when some early forms of sui generis GI systems were introduced in southern Europe, especially in France and Italy. While these regimes were based exclusively on the concept of terroir, a cipher for the physical link between a product and a place, an empirical analysis carried out in the present work reveals that, today, the history of the product and of its method of production is, statistically, the predominant linking factor. Furthermore, the research shows that the historical link is almost always mentioned in the specifications of EU GI products, when protected both by Protected Designations of Origin (PDO) or Protected Geographical Indications (PGI), which are the two quality schemes provided by EU Law. In particular, the terroir element, which characterises PDOs, also appears frequently in PGI specifications, where it should be superfluous, thus suggesting that the differences between these two quality schemes are unclear. Finally, the emergence of the historical element confirms that GIs can contribute to the protection of products that are linked to a geographical area not by physical and environmental factors, but by the socio-cultural traditions of a specific place. Although history can constitute a valid product/link, however, it must be used with caution, as it can be mystified and reconstructed in an arbitrary and unfounded way. This is dangerous, because it can turn GIs into a mere marketing tool, thus damaging the origin function that distinguishes them from the broad family of quality labels
(Re)locating geographical indications
No full textThis project is organised around the response to a single Thesis Question; If a product bears the place name "X" but does not in fact originate there, when does and when should this contravene principles of intellectual property law? Effectively, when does and when should this branch of the law prohibit the use of 'Californian Champagne'? Responses to this question have emerged over the course of a century of contentious international debates concerning the protection of Geographical Indications (GIs). The project first seeks to locate historical responses to this question within their broader context. The principal set of responses is provided by the law of unfair competition, with its prohibition of conduct which either misleads consumers or results In the misappropriation goodwill.EThOS - Electronic Theses Online ServiceGBUnited Kingdo
Quibbling siblings: conflicts between trade marks and geographical indications
No full textThe relationship between trademarks and geographical indications (GIs) has historically been tempestuous. Each of these quibbling siblings, members of the broader family of Unfair Competition law, entitles registrants to the exclusive use of a sign. So what happens when a GI collective and a trademark proprietor lay claim to the same sign within a single jurisdiction? As part of the renewed interest in TRIPs flexibilities and attempts at accommodating or reconciling differences between national laws, this paper explores a newly emerging space that may just be big enough for the both of them. The analysis draws on a recent World Trade Organization (WTO) Panel Report, which identifies the legal foundations for cohabitation. The Report coincides with doctrinal developments at the national and regional level which initially identified this zone of compromise: the geographical 'descriptive use' defence in trademark law. Coexistence is significant as it alters the dynamic of a venerable conflict between trademark and GI regimes, which has been locked in the language of trumps for several decades. Accordingly, this paper introduces the players and describes the game of one-upmanship prior to this development in Part I; outlines the WTO decision in Part II and then draws parallels with doctrinal developments in the EU and US which presaged the possibility of coexistence in Part III. It concludes with an endorsement of coexistence as an equitable solution
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Relocating the law of geographical indications /
No full textThere is considerable variation in the nature, scope and institutional forms of legal protection for valuable geographical brands such as Champagne, Colombian coffee and Darjeeling tea. While regional products are increasingly important for producers, consumers and policy makers, the international legal regime under the TRIPS Agreement remains unclear. Adopting a historical approach, Dev Gangjee explores the rules regulating these valuable geographical designations within international intellectual property law. He traces the emergence of geographical indications as a distinct category while investigating the key distinguishing feature of the link between regional products and their places of origin. The research addresses long-standing puzzles, such as the multiplicity of regimes operating in this area; the recognition of the link between product and place and its current articulation in the TRIPS definition; the varying scope of protection; and the extent to which geographical indications ought to be treated as a category distinct from trade marks
Relocating the law of geographical indications
No full textThere is considerable variation in the nature, scope and institutional forms of legal protection for valuable geographical brands such as Champagne, Colombian coffee and Darjeeling tea. While regional products are increasingly important for producers, consumers and policy makers, the international legal regime under the TRIPs Agreement remains unclear. Adopting a historical approach, Dev Gangjee explores the rules regulating these valuable geographical designations within international intellectual property law. He traces the emergence of geographical indications as a distinct category while investigating the key distinguishing feature of the link between regional products and their places of origin. The research addresses longstanding puzzles, such as the multiplicity of regimes operating in this area; the recognition of the link between product and place and its current articulation in the TRIPS definition; the varying scope of protection; and the extent to which geographical indications ought to be treated as a category distinct from trade marks
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Non Conventional Trade Marks in India
No full textDev Gangjee analyses the registration of non conventional shape marks in India, with specific focus on the Indian Trademark Registry\u27s Manual for Trade Mark Practice and Procedure. He compares the procedural and substantive provisions in the Manual with the law prevailing in jurisdictions such as the European Union and the United States, and in light of various anti-competitive concerns, proposes a cautious reception for such marks
Delay-and-pay: prolonging pharmaceutical patent protection without paying the ‘price’
No full textThis thesis argues that actors use the patent system as part of a ‘delay-and-pay’ strategy to preserve drug prices for as long as possible by delaying generic/biosimilar market entry – and that they have a significant incentive to do so. This strategy is based on the notion that it is significantly more profitable for patentees to delay generic/biosimilar market entry by way of a patent infringement claim and ensuing injunction, then pay damages to the enjoined party should the infringement claim be defeated. Patentees have much to gain and little to lose under ‘delay-and-pay’. My doctrinal analysis establishes that the generic/biosimilar defendants’ loss is likely undercompensated and the money that national health authorities spent purchasing the more expensive, patented drug whilst the interim injunction remained in effect is not usually compensated following a patent revocation and discharged injunction. Taken together this provides a significant financial incentive to delay generic/biosimilar market entry for as long as possible, even if patentees ultimately lose at trial.
After discussing the incentives behind the delay-and-pay strategy, the thesis turns to the ‘how’. It starts by showing how actors now protect medicines with large patent portfolios comprising several different patents, which lays the basis for the structure of subsequent chapters. Following the traditional patent filing timeline of pharmaceutical patent portfolios, each chapter shows the relevant patent and/or ensuing procedural right forms one part of the delay-and-pay strategy and proposes targeted solutions. The thesis then proposes that the courts should require patentees to disgorge the additional profits made during the interim injunction to generic/biosimilar manufacturers and national health authorities to neutralise any benefits gained from the delay-and-pay strategy. With strained health budges and rising drug prices, it is imperative that underserved wealth transfers are reversed so patentees do not benefit from a windfall when enforcing invalid rights
Putting confusion in context: the nature of the comparison in trade mark infringement
Get PDFThe role of context is generally underplayed in a registration-based system. Determination of confusion is confined to the information set out on the register, and any external matter promptly excluded from infringement assessment. Such an abstract assessment following a mark for mark comparison can be contrasted with the more factually-driven approach available in unfair competition. This comparison also unveils the possible methodological choices between an analysis framed as a formal reassurance of property rights and another centred on the perception of the consumer inhabiting the marketplace. Recently, the CJEU decisions in O2 Holdings and Specsavers drew attention to the role of context in determination of confusion and, furthermore, the effect of different notions of context on outcomes of infringement analysis. The European Court is seemingly leaning towards a contextual assessment calling for empirical evidence in infringement. The actual use of the trade mark by the claimant, the circumstances in which the sign is used by the defendant, consumer understandings and market practices are all factors taken into account in determination of confusion. This work seeks to examine the CJEU doctrinal developments of the notion of context and their effect on the previously established boundaries of the multifactor test for infringement applied by national courts taking UK law as a case study. I argue that while a paper-based approach still has a well-deserved place operating at the registration level, the manner in which infringement has been dealt with in adjudication needs rethinking; a paper-based approach to infringement focusing on the visual comparison of isolated marks is no longer able to account for a reality that has become increasingly complex. Rather, a methodology assimilating a broader notion of context to infringement, one working with pliable layers of factual review reflecting market reality and consumer understandings, could be a means of achieving balance in a system that is often criticised for overreaching itself
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