Law Notes Intellectual Property Law Notes
IP law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB Intellectual Property law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best IP Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highes...
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What is a trade mark?
TMA s1(1): “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings”
Trademarks communication 3 possible types of information
Trade origin (essential function in European terms)
Martin y Paz Diffusion v David Depuydt (2013): Trade marks tell customers who is “the owner of the trade mark and not (necessarily) the real manufacturer)
Quality (customers expect consistently quality from the same product)
This is a by-product of indicating trade origin
SA-CNL SUCAL v HAG (1990): Trade marks guarantee that the goods “have been produced under the control of a single undertaking which is accountable for their quality”
Other values (“atmospherics”)
Used to target specific consumer groups in advertising
Dior v Evora: Trade marks can have “communication, investment, or advertising functions”
Parallel systems
Community Trade Marks
Governed by the Community Trade Mark Regulation 207/2009
National Trade Marks
Governed by the Trade Marks Act 1994
Harmonised by the Trade Mark Directive 2008/95/EC
Courts often apply the Directive since the Act has to be interpreted in accordance with the Directive anyway
Granted by the UK IPO
Different justifications from other IP rights
Doesn’t protect creations (unlike patents and copyrights which require originality)
So it cannot rely on natural rights (Lockean) or be to incentivise creation
Distinct from the goods themselves
So it doesn’t prevent competition in the actual product, only the marks
Function indefinitely, receive perpetual protection
Stricter time limits on copyright and patents
Problems with trade mark protection
Impedes competition
Competitors are forced to use other names and branding, since trade mark registration gives a monopoly to the owner
The trade mark could cover a broad category of goods and services
This could result in increased costs
Applicant need not be doing anything (e.g. selling products) when registering for the trade mark
If someone uses a trade mark in ignorance and subsequently has to rebrand, that creates significant cost
Impedes free speech
E.g. in parodies of branded goods
Arsenal Football Club v Reed [2003] CMLR 481
CJEU considered the function and purposes of trade marks
The “essential function … is to guarantee the identity of origin”
By enabling consumers “without any possibility of confusion, to distinguish the goods or services from others which have another origin”
To fulfil its role, trade marks must “offer a guarantee that all the goods or services bearing it have been manufactured or supplied under the control of a single undertaking which is responsible for their quality”
Trade marks help to identify goods
Reduces search costs
In the market for trademarked goods
This requires that producers “maintain a consistent quality across time and across consumers” and that searching for the trade mark is cheaper than searching for desired attributes
Allows customers to avoid investigating attributes of the brand by relying on the trade mark
Trade marks are “self-enforcing”, incentivising producers to maintain consistent quality
“They are valuable because they denote consistent quality, and a firm has an incentive to develop a trade mark only if it is able to maintain consistent quality”
If there is no consistent quality, customers will learn that the trade mark doesn’t connect their past and future purchases and will be unwilling to pay for it
There are limited costs of trade marks
Possibility that owners are induced to spend money on creating a “spurious image of high quality that enables monopoly rents”
Diverting consumers from lower-priced substitutes of equal or higher quality
E.g. branded goods which are produced according to the same formula as generic goods but cost more
Landes and Posner: This has not happened in trade mark law
Trade marks ensure the quality of the product, not just the formula by which it was produced
Trade marks don’t create social waste and consumer deception
Schechter (1926): Trade marks perform advertising functions as well as indicating origin
The “trademark is not merely the symbol of goodwill but often the most effective agent for the creation of goodwill, imprinting upon the public mind an anonymous and impersonal guarantee of satisfaction, creating a desire for further satisfactions”
Trade marks should be protected even if there is no confusion as to origin
Key principles
“value of the modern trademark lies in its selling power”
The selling power depends on not only the “merit of the goods” but also “its own uniqueness and singularity” to create a “psychological hold” on the public
Uniqueness or singularity is “vitiated or impaired” by use on other goods
Degree of protection should depend on how unique it is due to owner’s efforts
Klein: Consumers often purchase brands rather than the underlying product
Litman (1999): There is no social purpose in protecting atmospherics, despite their value
Just because consumers “attach real value to atmospherics” doesn’t mean that these atmospherics should be protected
Valuable things might deserve protection or might need to remain available for public use
“Protecting consumers from deception is the justification most familiar to trademark law”
But this doesn’t justify preventing dilution where there is no confusion
The justification of incentivising investment is not applicable either
Justification of desert is not very applicable, although owners invest in the trade mark
The value of trade marks “derives from consumers’ investing those symbols with value for which they are willing to pay real money”
So this value should be left in the public sphere, not owned by the proprietors
Consumer protection
Buy the full version of these notes or essay plans and more in our Intellectual Property Law Notes.
IP law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB Intellectual Property law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best IP Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highes...
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