Filter by
  • G Dinwoodie and Mark Janis (eds), Trademark and Unfair Competition Law: Doctrinal Debates (Edward Elgar Publishing 2014)
  • D S Gangjee, 'Spanish Champagne: An Unfair Competition Approach to GI Protection' in R.C. Dreyfuss & J. C. Ginsburg (ed), Intellectual Property at the Edge: The Contested Contours of IP (CUP, Cambridge 2014)
  • European Max Planck Group on Conflict of Laws etc and G Dinwoodie, Conflict of Laws in Intellectual Property: The CLIP Principles and Commentary (Oxford University Press 2013)
    ISBN: 978-0-19-966508-2
  • W Cornish and G Dinwoodie, 'Intellectual Property' in Andrew Burrows (ed), English Private Law (3d ed) (Oxford University Press 2013)
  • G Dinwoodie, 'The Europeanisation of Trade Mark Law' in Ansgar Ohly & Justine Pila (ed), The Europeanisation of Intellectual Property Law (Oxford Univ. Press 2013)
    This Chapter analyses one harmonisation project within European intellectual property law, namely, the recent development of trade mark law within the European Union (EU). It highlights several characteristics of trade mark harmonisation within the European Union. First, harmonisation of national trade mark laws in the Union has been “tight”. In this regard, for reasons that make sense in the European political and legal theatre, it is different from the international model of so-called “minimum rights” harmonisation that drove convergence of trade mark norms for the preceding century. Second, the Trade Mark Directive (with the aid of the Court of Justice and national courts) has effected almost total harmonisation of substantive trade mark law, belying the claims of limited harmonisation that are found in the recital to that Directive. Third, the Court of Justice has exhibited a tendency to limit any room for member state manoeuvre, for example, finding that even optional provisions of the Directive must be given a single European meaning. The Court has paid little attention to concerns of subsidiarity. Finally, additional pressure to find single European solutions results from the existence of a Trade Mark Regulation that creates a counterpart unitary regional right (the Community Trade Mark, or CTM) and attendant EU institutions to administer and enforce that right. This parallel EU-level regime tends to reinforce the idea that trade mark law has been wholly Europeanised, and exerts pressure on the content of Directive-driven national law because the demands of vertical coherence have trumped the potential benefits of regulatory competition between national and regional regimes. In short, there has over the past twenty years been an extensive and deep Europeanisation of trade mark law. But this in turn raises ongoing questions about how best to develop harmonised European principles, because harmonisation is a dynamic lawmaking process and not a static legislative instrument. In this Chapter, I consider how the process of harmonisation has affected the development of optimal principles of trade mark law, an analysis that is necessarily informed by substantive preferences. It is only by measuring harmonisation by reference to some form of substantive metric that a full assessment of the harmonisation process can be made. I suggest that it important to recognise the important role of national courts in the development of EU trade mark law (in part because of the nature of the field of law), and that paying attention to national legal traditions would assist the Court of Justice in improving the quality of European trade mark law.
  • P Mysoor, 'Unpacking the Right of Communication to the Public: A Closer Look at International and EU Copyright Law' [2013] IPQ 166
    In the ever-evolving information age, the right of communication to the public has struggled for a predictable interpretation under EU copyright law. Through the successive rulings of the CJEU, a body of law is beginning to emerge to interpret the right. Some of the findings of the CJEU have brought an uncomfortable overlap of right of communication to the public with the pre-existing right of public performance. Certain other findings such as the need for an active intervention by the user, the concept of "new public" and the need for an economic gain resulting from the communication have identified elements of the right not obvious from a plain reading of the provisions, although these findings have not been consistently applied. The purpose of this article is to unpack all these findings, and take a critical look at whether such findings are in tune with the jurisprudential basis of the right, and assess their impact on the national laws.
  • D S Gangjee, 'Property in Brands: The Commodification of Conversation' in H. Howe and J. Griffiths (eds), Concepts of Property in Intellectual Property Law (CUP, Cambridge 2013)
    This paper traces the emergence of a new res or object of protection within European trade mark law. Proprietary rights in trade marks have conventionally been premised upon the mark’s ability to communicate useful information; namely, indicating the commercial source of goods or services. Granting exclusive rights to control the use of a mark preserves its ability to reliably signal origin. Contemporary EU trade mark law goes further and protects the more expansive brand dimension associated with a successful trade mark. The Court of Justice of the European Union (ECJ) has enabled this by recognising not only the origin indication function of marks, but also their advertising, investment and communication functions as well. The brand is a remarkably elusive and protean, yet undeniably valuable, intangible. So what are the doctrinal tools and techniques available to courts, registrars and legal practitioners, enabling them to work with such elusive subject matter? What are the corresponding assumptions about brand creation and sustenance that reinforce these techniques? And can they be reconciled with recent conceptualisations of branding emerging from marketing and consumer studies research? Since brand protection is a controversial development within European trade mark law, this paper unpacks the manner in which the brand is conceived of within European legal doctrine. The ECJ situates branding within a one-way broadcast model, while contemporary marketing research emphasises that brand formation is dialogic and iterative. The ECJ’s approach to brand propertization is therefore not only inaccurate in presuming single author brand creation, but also deeply troubling since it marginalizes consumer agency and reinforces the exploitation of their immaterial labour through the instrumentality of trade mark law.
  • G Dinwoodie and R. C. Dreyfuss, A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime (Oxford Univ. Press 2012)
    The TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights), signed on April 15, 1994, introduced intellectual property protection into the World Trade Organization's multilateral trading system, and it remains the most comprehensive international agreement on intellectual property to date. A Neofederalist Vision of TRIPS by Graeme B. Dinwoodie and Rochelle C. Dreyfuss examines its interpretation, its impact on the creative environment, and its effect on national and international lawmaking. It propounds a vision of TRIPS as creating a neofederalist regime, one that will ensure the resilience of the international intellectual property system in time of rapid change. In this vision, WTO members retain considerable flexibility to tailor intellectual property law to their national priorities and to experiment with changes necessary to meet new technological and social challenges, but agree to operate within an international framework. This framework, while less powerful than the central administration of a federal government, comprises a series of substantive and procedural commitments that promote the coordination of both the present intellectual property system as well as future international intellectual property lawmaking. Part I demonstrates the centrality of state autonomy throughout the history of international negotiations over intellectual property. Part II, which looks at the present, analyzes the decisions of the WTO in intellectual property cases. It concludes that the WTO has been inattentive to the benefits of promoting cultural diversity, the values inherent in intellectual property, the rich fabric of its law and lore, the necessary balance between producers and users of knowledge goods, and the relationship between the law and the technological environment in which it must operate. Looking to the future, Part III develops a framework for integrating the increasingly fragmented international system and proposes the recognition of an international intellectual property acquis, a set of longstanding principles that have informed, and should continue to inform intellectual property lawmaking. The acquis would include both express and latent components of the international regime, put access-regarding guarantees such as user rights on a par with proprietary interests and enshrine the fundamental importance of national autonomy in the international system.
    ISBN: ISBN13: 978019530461
  • A Johnston and Guy Block, EU Energy Law (Oxford University Press 2012)
    ISBN: 9780199665242
  • A Johnston and Hannes Unberath, 'Annotation on Joined Cases C-65/09 & C-87/09, Gebr. Weber GmbH v. Jürgen Wittmer and Ingrid Putz v. Medianess Electronics GmbH (judgment of 16 June 2011)' (2012) 48 Common Market Law Review 793 [Case Note]
  • Simon Deakin, A Johnston and Basil Markesinis, Markesinis and Deakin’s Tort Law (Oxford University Press 2012)
    ISBN: 978-0-19-959198-5
  • D S Gangjee, 'Copyright: India' in P E Geller (ed), International Copyright Law and Practice (Lexis: Matthew Bender- 2012)
    [Annual contribution] Formerly by S. Ramiah
  • D S Gangjee, 'Cultural Heritage and Geographical Indications ' (2012) 4 WIPO Journal 92
  • D S Gangjee, 'Overlaps between Trade Marks and Geographical Indications' in N. Wilkoff and S. Basheer (eds), Overlapping Intellectual Property Rights (OUP, Oxford 2012)
  • G Dinwoodie, 'Remarks --“One Size Fits All”: Consolidation and Difference in Intellectual Property Law ' in A. Kur and V. Mizaras (eds), The Structure of Intellectual Property Law: Can One Size Fit All? (Edward Elgar 2011)
    These remarks to the 2008 ATRIP Annual Conference addressed the question of whether “one size fits all” in intellectual property law. Are there sufficient commonalities among the component parts of the field that we could realistically construct a unitary body of intellectual property law? I first set out the different inquiries that might be subsumed by the question of whether “one size fits all” in intellectual property law, focusing on the possibility of a single form of intellectual property, common treatment of different subject matter within regimes, and uniform intellectual property laws across borders. Focusing on this last aspect of the question, I note that the backwards-looking aspect of the classical international system, which tended to favor national autonomy and keep internationally-mandated levels of protection low, has been somewhat disrupted of late. Although it remains the case that one size does not fit all, there is much to be gained by seeking greater commonality. But if the focus of the current international system requires greater commonality – greater attention to a one size fits all approach on certain issues -- it does so both with respect to the rights conferred on IP right holders and with respect to the new rights that might potentially be conferred on users.
  • A Johnston, 'Review of: Kelyn Bacon, EC Law of State Aid (Oxford: OUP, 2009) and Martin Heidenhain, European State Aid Law (Munich: C.H. Beck, 2010)' (2011) 127 Law Quarterly Review 151 [Review]
  • A Johnston, 'The Future Shape of EU Energy Law and Policy' in Anthony Arnull, Catherine Barnard, Michael Dougan and Eleanor Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Hart Publishing 2011)
    The twin themes of this chapter are, first, the need for careful accommodation at the EU level of the diversity of Member State interests and concerns in the energy field ... and, second, the slow but real shift in EU (and some national) energy law and policy away from reliance upon market mechanisms and towards more complex regimes ... to achieve a myriad of public interest goals.
    ISBN: 978-1-849460-046-0
  • D S Gangjee, 'Demerara Sugar: A Bitter Pill to Swallow? ' (2011) 24 Intellectual Property Journal 1
  • G Dinwoodie, 'The Common Law and Trade Marks in an Age of Statutes' in Bently, Ng & D’Agostino (ed), The Common Law of Intellectual Property: Essays in Honour of Professor David Vaver (Hart Publishing 2010)
    In 1879, the United States Supreme Court recognized that trade marks are a creature of the common law. Likewise, the English courts had long recognized causes of action that effectively protected marks prior to the enactment of statutes delineating the scope of trademark protection. The characterization of trade mark law as a field of common law may, however, now seem an essentially historical statement. In the United States, the early twentieth century saw the adoption of a series of federal trademark registration statutes, and in 1946 Congress enacted even more comprehensive trademark legislation, namely the Lanham Act. Since then, Congress, has episodically - but with increasing frequency - revised the trademark statute. In light of such increased statutorification of trade mark law, what is the continued role of the common law in developing appropriate protection for trade marks? In this chapter, I recount the development of the common law of trade marks, highlighting the background developments outside trademark law that influenced the allocation of trademark lawmaking authority over the course of the twentieth century. The historical importance of these external influences suggests that trademark law will not be immune to changes in contemporary judicial philosophy that have made some scholars fearful about the room for further common law development. However, a brief review of recent Congressional activity and Supreme Court opinions in the field suggests that, despite substantial legislative intervention, both Congress and the Supreme Court appear content that the development of trademark and unfair competition law in the United States remain a partnership between the two institutions, and thus heavily dependent on common law lawmaking by the courts.
    ISBN: 9781841139708