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  • P P Craig, '‘Unreasonableness and Proportionality in UK Law’' in E Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart 1999)
  • H Collins, 'Closure and Openness - Reasoning in the Law of Contract and the Social Construction of Markets' in Tanese (ed), Principles of Contract and Practice of Contracts (1999)
  • JA Armour, 'Corporate Personality and Assumption of Responsibility' (1999) Lloyds’ Maritime & Commercial Law Quarterly 246
    ISBN: 0306-2945
  • H Collins, Regulating Contracts (Oxford University Press 1999)
    ISBN: 0199258015
  • G Dinwoodie, 'The Death of Ontology: A Teleological Approach to Trademark Law' (1999) 84 Iowa Law Review 611
    In recent years, U.S. courts have recognized that a wide (and potentially limitless) range of subject matter may act as a trademark. These developments arguably comport both with a contemporary (global) consumer who is less reliant on linguistic forms of communication and with postmodern scholarship regarding the varied sources and development of meaning. This article addresses how trademark law should adapt to the reality that consumers identify and distinguish products using a range of symbols other than the traditional forms of words and pictorial images. I contend that, in order to regulate effectively the present-day marketplace, trademark law must recognize the limitless sources of meaning. But while nontraditional subject-matter may equally identify a product?s source, protecting that nontraditional matter as a trademark may give rise to very different consequences than protecting traditional trademark subject-matter such as words. If ontological restrictions upon trademark subject-matter are removed, a new set of limits must prudently be established if trademark protection is not to spawn adverse competitive effects from overprotection. I suggest that such limits can be found by tethering trademark law directly to its limited purposes, and by grounding protection not in over-generalized assumptions about classes of subject matter, but rather in the real present-day impact of particular symbols in society. The Article explores this (teleological model) through the vehicle of the nontraditional subject-matter generating the most trademark litigation and the most critical thinking, namely, product design features. The article systematizes the growing body of trade dress case law and scholarship and highlights the different premises that I detect underlying divergent schools of thought. I argue that the Supreme Court is cautiously moving, albeit without any express recognition, toward a postmodern vision of marketplace symbols, and that its recent opinions represent an incipient version of the teleological model that I espouse. Finally, I exemplify the operation of the teleological model by applying its lessons to the issue of functionality. Applying the teleological model to various hotly-debated aspects of the functionality doctrine leads me to endorse adoption of a transparent, purposive analysis of "competitive need" as the measure of functionality rather than any single doctrinal formulation. That inquiry, I argue, should be particularized and applied without categorical differentiation between aesthetic and utilitarian features. I also reject the prevailing view that a finding of functionality should foreclose the grant of any relief to a plaintiff producer, finding it insufficiently cognizant of the costs of confusingly similar source-identifying designs in an increasingly visual society. Instead, I propose that courts should explore the possibility of conditioning a defendant's right to copy a functional design on compliance with labeling or other requirements that minimize consumer confusion. Moderating the consequence for plaintiffs of a finding of functionality should embolden courts to apply a rigorous functionality analysis to a greater range of design features. An ontologically unlimited approach to trademark subject-matter sits well with our postmodern condition; but, in order to avoid over-protection, it must be accompanied by a heightened regard for the policy concerns embodied in the functionality doctrine.
  • S Enchelmaier, 'Current Developments: EC Law' (1998) 47 ICLQ 706
  • H Eidenmüller, 'Der Auskunftsanspruch des nichtehelichen Kindes gegen seine Mutter auf Benennung des leiblichen Vaters' (1998) ”, Juristische Schulung (JuS) 789
  • H Eidenmüller, Effizienz als Rechtsprinzip: Möglichkeiten und Grenzen der ökonomischen Analyse des Rechts (2nd edn Mohr Siebeck 1998)
  • TAO Endicott, 'Herbert Hart and the Semantic Sting' (1998) 4 Legal Theory 283
    DOI: 10.1017/S1352325200001038
    An invited contribution to a special issue on Hart’s ‘Postscript’ to The Concept of Law
  • P P Craig and C Harlow (eds), Lawmaking in the European Union (Kluwer 1998)
  • H Eidenmüller, 'Mediationstechniken bei Unternehmenssanierungen' (1998) 10th Suppl to Issue 40 Der Betriebs-Berater (BB) 19
  • TAO Endicott, 'Questions of Law' (1998) 114 Law Quarterly Review 292
    Difficulties in distinguishing between questions of law and questions of fact have led some to urge a pragmatic approach to the distinction (a distinction important in various areas of the law, and in particular in English administrative law). The pragmatic approach would ask which questions it is useful to treat as questions of law. I offer an analytical approach that seeks to explain which questions are questions of law. I defend the view that a question of application of statutory language is a question of law when the law requires a particular answer to it. The law requires one answer to the question of application (1) in a clear case of the application of the statutory language, and (2) when the court exercises its legal power to elaborate the law so as to require (or interprets the statutory standard to require) one answer.
  • P P Craig, 'Regulation and Judicial Review: Perspectives from UK and EC Law’ ' in C McCrudden (ed), Regulation and Deregulation: Policy and Practice in the Utilities and Financial Services Industries (Oxford University Press 1998)
  • TAO Endicott, 'Review of Richard Posner, Law and Legal Theory in England and America (Oxford: Clarendon Press, 1997)' (1998) 114 Law Quarterly Review 511 [Review]
    ISBN: 0023-933X
  • S Enchelmaier, 'U Neergaard, Competition and Competences' (1998) 18 Yearbook of European Law 728 [Review]
  • S Enchelmaier, 'V Korah, An Introductory Guide to EC Competition Law and Practice' (1998) 18 Yearbook of European Law 726 [Review]
  • P P Craig, '‘Indirect Effect of Directives in the Application of National Legislation’ ' in M Andenas and F Jacobs (eds), European Community Law in the English Courts (Hart 1998)
  • P P Craig, '‘Prerogative, Precedent and Power’ ' in C Forsyth and I Hare (eds), The Golden Metwand and the Crooked Cord, Essays in Honour of Sir William Wade (Oxford University Press 1998)
  • P P Craig, '‘Report on the United Kingdom’ ' in A-M Slaughter, A Stone Sweet and J Weiler (eds), The European Courts and National Courts, Doctrine and Jurisprudence (Hart 1998)
  • P P Craig, '‘Substantive Legitimate Expectations and the Principles of Judicial Review’ ' in M Andenas (ed), English Public Law and the Common Law of Europe (Key Haven 1998)
  • P P Craig, '‘The Domestic Liability of Public Authorities in Damages: Lessons from the EC?’' in J Beatson and T Tridimas (eds), New Directions in European Public Law (Hart 1998)
  • P P Craig, '‘The Treaty of Amsterdam: A Brief Guide’' (1998) PL 351 [Case Note]
  • P P Craig, '‘Ultra Vires and the Foundations of Judicial Review’' (1998) CLJ 63
  • H Collins, 'Flexibility and Empowerment' in T. Wilthagen (ed), Advancing Theory in Labour Law and Industrial Relations in a Global Context (Amsterdam: North-Holland 1998)
    ISBN: 0444858202

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