Trade law Part 16

Use as a Trade Mark: Avoiding Confusion When Considering Dilution
MARK DAVISON AND FRANK DI GIANTOMASSO
European Intellectual Property Review
Volume 31, Issue 9, 2009 p.443

There is an ongoing debate as to both the existence and the desirability of a requirement of trade mark use in infringement actions in the United States. In order to assess the role of trade mark use in either standard infringement actions or dilution actions, a clear understanding of the nature of trade mark use is required. This article distinguishes trade mark use from the separate concept of confusion by reference to Australian case law and demonstrates its potential in defining the rights of trade mark owners, particularly for the purposes of dilution actions.

Trademark Dilution-No Laughing Matter
ZIYAAD MOHAMED NAVSA
European Intellectual Property Review
Volume 31, Issue 9, 2009 p.455

The article deals with the interaction between intellectual property law rights, and rights expressly contained in the Bill of Rights of the Constitution of the Republic of South Africa 1996, as it arose in the SAB International t/a Sabmark International v Laugh It Off Promotions case. The Constitutional Court’s (CC) decision will be shown to be discordant with foreign jurisdictions with equivalent anti trade mark dilution legislation and constitutional guarantees of the right to freedom of expression. It will suggest a potential avenue open to trade mark proprietors to circumvent the precedent set by the CC. The article aligns itself with the temperate approach adopted by the South African Supreme Court of Appeal.

BUSINESS OF LAW
ABA Journal
Volume 95, August 2009 p.29

E-discovery industry seeing slower growth, more mergers. – Social networks appeal, but not to the firm. – Tips on success with online software services. – Some solo and small-firm practitioners find clients who can’t pay cash can still pay in trade.

Fair work laws: Good faith bargaining, union right of entry and the legal notion of “responsible unionism”
Louise Floyd
Australian Business Law Review
Volume 37, Number 4, August 2009 p.255

The Fair Work Act 2009 (Cth) predominantly commenced operation on 1 July 2009, with its final provisions (eg minimum entitlements) set to become operative in January 2010. From the perspective of Australian business lawyers, two of the more significant changes that the legislation introduces pertain to the relationship between employers and trade unions; namely, the provisions governing good faith bargaining and union right of entry. This article analyses the new laws on these topics. From a study of the relevant law, the article considers the circumstances in which unions, not just employers, might be found to be in breach of the new s 228 which, for example, requires parties not to bargain in such a way as to undermine freedom of association and collective bargaining. Of relevance to that topic, the article also considers the British decision of Young, James and Webster and its pronouncements on the legal concept of “responsible unionism”. It is argued that responsible unionism”is relevant to the interpretation of good faith bargaining by unions and union right of entry. The article also posits that “responsible unionism”is relevant to two further issues which are extremely significant, yet have been substantively left to future rounds of reform. The first of these issues relates to the form of the trade union registration and governance provisions. The second issue pertains to the question of what will happen to unions with State and federal branches if a true national system of industrial relations is achieved. The article concludes by arguing that the rights of State businesses, unions and workers should he given due weight. The notions of good faith bargaining, right of entry, responsible unionism and State interests are therefore all interconnected.

eBay is under no duty under English law to prevent trade mark infringements by third parties
Jonathan Davis
Journal of Intellectual Property Law & Practice
Volume 4, Number 10, October 2009 p.694-696

Trade Fixtures In Eminent Domain Proceedings
Michael Rikon
Practical Real Estate Lawyer
Volume 25, Number 5, September 2009 p.53

How are trade fixtures valued in an eminent domain proceeding? And what happens when the fixtures are owned by a tenant, rather than the fee owner of the property taken in eminent domain? How is it determined that an item is a compensable trade fixture? The States take widely varying approaches to these questions and in this article Michael Rikon examines the fundamentals of the law of trade fixtures, how the law has evolved, the different tests that Sates employ in determining whether an item is a trade fixture, and some of the general principles that the practitioner should know about in order to assure that the trade fixture owner receives just compensation.

DROIT DU COMMERCE INTERNATIONAL ET DE LA CONCURRENCE/INTERNATIONAL TRADE AND COMPETITION LAW
International Business Law Journal
Number 6, 2008

Author: international

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