1,720,987 research outputs found
The TRIPs compatibility of Australia's tobacco plain packaging legislation
No full textThe use of tobacco entails negative health consequences. In fact, it is reported that had the ill effects of tobacco been known much earlier in time, tobacco would have been a banned substance. Yet, in today's context tobacco has become part of legitimate trade, and the livelihoods in countries that export tobacco heavily depend on trade in tobacco. In the circumstances, could governments intervene on health and public policy grounds and regulate the manner in which tobacco products are marketed and sold? If so, to what extent? These are precisely the questions that fuel the gruelling dual between tobacco companies and health conscious countries, such as Australia that has recently enacted legislation making mandatory the plain packaging of tobacco products from December 2012. The Australian legislative measure, namely the Tobacco Plain Packaging Act 2011 (Cth), is currently under attack in several fronts, including the World Trade Organisation, though recently the Australian High Court upheld the constitutionality of the plain packaging legislation. The purpose of this paper is to approach the question of the legality of government intervention in totally prohibiting the striking elements of tobacco packaging from a purely international trademark law point of view. First, the paper identifies the scope of trademark protection as set out in the Agreement on the Trade Related aspects of Intellectual Property Rights ("TRIPs") and then goes on to analyse the Australian plain packaging law in the context of its own trademark legislation. Thence, the paper considers whether the Australian plain packaging legislation complies with the core provisions on trademark protection enshrined in TRIPs, and lastly provides a possible compromise to reconcile the competing interests
The Registrability of Unconventional Trademarks in India and Sri Lanka: A Comparative Analysis
No full text497-506India and Sri Lanka, having embraced the new global economic wave have liberated their international trade policies incubating a supportive atmosphere within for foreign traders to setup business in the local markets. This new trend though beneficial to the economies of both countries, has posed many new legal issues, particularly, in intellectual property law. One important problem relates to the area of unconventional trademarks, which is of great importance to trade. This paper examines current legal provisions relating to trademarks in India and Sri Lanka and determines registrability of unconventional marks, with emphasis on colour, scent and sounds, within the existing legal framework. Legal reforms are also suggested wherever appropriate. A comparative approach has been adopted, as Sri Lanka and India are historically, culturally and geographically closely connected to each other. Further, intellectual property laws of both the countries are TRIPS compliant and thus can be conveniently considered together
The disposal of COVID-19 dead bodies: impact of Sri Lanka's response on fundamental rights
No full textIn early 2020, the Government of Sri Lanka decided that all bodies of individuals who had (or were suspected to have) died of COVID-19 should be disposed of by cremation alone. Although this decision appears to be neutral and does not give rise to de jure discrimination, as a matter of fact, it has significantly impacted the religious rights of the Muslim community in Sri Lanka. This is because they firmly believe in the need to bury the dead in a dignified and decent manner-cremation being regarded as a repugnant practice amounting to a desecration of the human body. As such, the Sri Lankan Government's decision to adopt a cremation-only policy interfered with the right of all Sri Lankan Muslims to manifest their religion or belief as guaranteed by the 1978 Constitution of Sri Lanka. Despite there being no scientific evidence to suggest that the burial of COVID-19 victims could give rise to contamination of the surroundings and thereby cause the spread of the virus, the Government of Sri Lanka continued with the policy for almost a whole year. Thereafter, due to international pressure, the Sri Lankan Government decided to allow burials but in a very restrictive manner. The objective of this article is to consider the extent to which the aforementioned decisions of the Sri Lankan Government are consistent with the fundamental rights framework of the country's Constitution
Challenges in achieving public health objectives through product labelling regulation: reflections on Sri Lankan trademark and constitutional law
No full textOnline service providers and third party trademark infringement: an Australian perspective
No full textToday's technology has enabled internet intermediaries to greatly expand their access, storing and linking functions and provide highly advanced interactive online services. As such, these intermediaries are more fittingly described as Online Service Providers (OSPs). This transformation has enabled businesses to utilize novel techniques in reaching relevant online consumers, while at the same time providing those consumers with relevant information and an increased freedom of choice. In the midst of these technological advancements, trademark owners have often sought to hold OSPs accountable for third party trademark infringement resulting from the infringing conduct of their users. Yet, in the Australian context, the doctrinal requirement that a trademark must be used 'as a trademark' and the wide section 123 defence available in the Trade Marks Act 1995 (Cth) that exempts those who deal with goods on which trademarks have been placed with the trademark owner's consent, gives rise to difficulty in extending the scope and application of the Trade Marks Act 1995 (Cth) to OSPs. The lack of any provision in the Trade Marks Act 1995 (Cth) dealing with indirect trademark infringement adds to the problem. In the circumstances, reliance has to be placed on common law principles to extend the application of the Trade Marks Act 1995 (Cth) to OSPs. Yet, the exact parameters of such an extension remain uncertain
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Internet intermediaries and trade mark rights /
No full textDespite the apparent advantages of the internet, there is little debate that it facilitates intellectual property infringements, including infringements of trade mark rights. Infringers not only remain hidden by the anonymity the internet provides but also take advantage of its increasing reach and the associated challenges with regard to cross-border enforcement of rights. These factors, among others, have rendered the internet a growing source of counterfeit and other infringing products. It has, therefore, become necessary for right holders to shift their focus from individual infringers to internet intermediaries, such as Internet Service Providers (ISPs), hosts and navigation providers, which are responsible in numerous ways for making content promoting infringements available to internet users. In light of these developments, this book conducts a comprehensive analysis of the liability of such intermediaries for trade mark infringements and considers the associated issues and challenges in the diverging approaches under which liability may be imposed. At present, however, neither UK trade mark law nor English common-law principles relating to accessorial liability provide a basis to hold internet intermediaries liable for trade mark infringements. As such, this book considers approaches adopted in some of the Continental European countries and the US in order to propose reforms aimed at addressing gaps in the existing legal framework. This book also examines alternative remedies, such as notice and takedown and injunctions, and discusses the associated shortcomings of each of these remedies
The Use of Streaming to Access Digital Content in Australia and Challenges to Copyright Law: An End-User Perspective
No full textThe rising popularity of streaming has resulted in a revolutionary change to how digital content, such as sound recordings, cinematographic films, and radio and television broadcasts, is used on the internet. Superseding the conventional method of downloading, using streaming to access digital content has challenged copyright law, because it is not clear whether end-user acts of streaming constitute copyright infringement. These prevailing grey areas between copyright and streaming often make end-users feel doubtful about accessing digital content through streaming. It is uncertain whether exercising the right of reproduction is appropriately suited for streaming, given the ambiguities of “embodiment” and scope of “substantial part”. Conversely, the fair dealing defence in Australia cannot be used aptly to defend end-users’ acts of streaming digital content, because the use of streaming to access digital content rarely falls within the defences specified under fair dealing. When considering a temporary copy exception, end-users are at risk of being held liable for infringement when using streaming to access a website that contains infringing digital content, even if they lack any knowledge about the content’s infringing nature. Moreover, the grey areas in circumventing geo-blocking have made end-users hesitant to access websites through streaming because it not clear whether technological protection measures apply to geoblocking. End-users have a severe lack of knowledge about whether they can use circumvention methods, such as virtual private networks, to access streaming websites without being held liable for copyright infringement. Despite the intricacies between copyright and access to digital content, the recently implemented website-blocking laws have emboldened copyright owners while suppressing end-users’ access to digital content. This is because the principles of proportionality and public interest have been given less attention when determining website-blocking injunctions.
This thesis examines the challenges posed to Australian copyright law by streaming, from the end-user perspective. It argues that continuous attempts to adapt traditional copyright principles into streaming, a novel technological advancement, are futile. This thesis compares the Australian position with the European Union and United States to draw lessons from them, regarding how they have dealt with streaming and copyright. By critically examining the technological functionality of streaming and the failure of copyright enforcement against the masses, it argues for strengthening end-user rights. Although it is difficult to reach copyright equilibrium by counterpoising copyright owners’ interests with copyright users’ interests, this thesis argues that deploying an appropriate balance is pivotal to expand end-user rights. This analysis of the current copyright law regime, from the end-user standpoint in respect to novel technologies such as streaming, opens up new terrain for future research, on how copyright law should address new technologies to benefit society.Thesis (PhD Doctorate)Doctor of Philosophy (PhD)Dept Account,Finance & EconGriffith Business SchoolFull Tex
A Critical and Comparative Review of auDRP and UDRP Domain Name Decisions
No full textDomain names are simplified internet addresses which provide a shorthand way to connect to webpages on the internet. The exponential increase in the use of the internet has led to a growing number of disputes relating to the registration and use of domain names. This has also led to the development of legal and quasi-legal rules relating to the management of domain names and domain name disputes. The Uniform Domain Name Dispute Resolution Policy (“UDRP”), which was implemented in 1999, provides the international legal framework for the resolution of domain name disputes concerning generic top-level domains (“gTLDs”), such as “.com”. National authorities provide corresponding policies for the resolution of domain name disputes concerning country code top-level domains (“ccTLDs”), such as “.au”. The relevant national policy governing .au domain name disputes is the .au Dispute Resolution Policy (“auDRP”), which came into force in 2002. Both the auDRP and UDRP have proven to be an effective mechanism for the quicker and cheaper resolution of domain name disputes. While there has been considerable academic discourse on the UDRP, there has been very little commentary written on the auDRP. The aim of this paper is to fill the gap in knowledge on the auDRP by providing a critical and comparative review of key decisions under both the international and Australian domain name policies
Geo-blocking, VPNs and injunctions
No full textGeo-blocking is the technical means by which copyright owners and licensees give effect to the practice of territorial licensing arrangements in respect of works made available on the internet. In effect, this has led to market fragmentation in an environment where consumers see no borders and have the expectation of universal access to content. Online consumers, therefore, have retained the services of virtual private networks (VPNs) to bypass geo-blocking technology, a practice that has irritated copyright owners, and in particular the film industry. In light of these tensions, this article first considers whether geo-blocking measures are valid technology protection measures. Secondly, it considers whether the injunctive remedy made available in the EU, Singapore and Australia specifically targeting "intermediaries" and "network" or "carriage" service providers applies to VPNs so that they can be compelled to adopt technical measures to prevent their users from bypassing geo-blocking measures
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