scholarly journals ‘As Good as New’ – Sale of Repaired or Refurbished Goods: Commendable Practice or Trade Mark Infringement?

2021 ◽  
Author(s):  
Annette Kur
Keyword(s):  
Life Cycle ◽  
Case Law ◽  
Trade Mark ◽  
Third Parties ◽  
Secondary Market ◽  
The Other ◽  
Entrepreneurial Activity ◽  
Binary Choice ◽  
Trade Mark Infringement ◽  
First Sale

Abstract Prolonging the life cycle of products in order to reduce waste and preserve resources is a call of our time. Entrepreneurial activity on the market for used and repaired goods should therefore be encouraged. However, problems may arise where trade-marked products are offered for sale after repair or refurbishment by third parties. While commercialisation of goods once put on the market by the trade mark holder or with their consent is free in principle, this does not apply when the condition of the product was changed after the first sale. This may cause a dilemma for persons who want to be active on the secondary market for repaired or refurbished goods: if the trade mark remains on the product, this may result in infringement; on the other hand, under the jurisprudence of the CJEU removal of the trade mark may equally be prohibited. This article explores the issue with a view to CJEU as well as German case law on this and adjacent scenarios. It concludes that instead of a strictly binary choice – either the trade mark remains on the product or is removed – a middle solution should apply that allows using the trade mark in relation to repaired or refurbished goods in addition to providing further information.

Intermediary Liability and Trade Mark Infringement: A Common Law Perspective

2020 ◽  
pp. 403-420
Author(s):  
Richard Arnold
Keyword(s):  
Common Law ◽  
Case Law ◽  
Trade Mark ◽  
Trade Marks ◽  
Legal Principles ◽  
Trade Mark Infringement ◽  
Trade Mark Law ◽  
Intermediary Liability ◽  
Eu Trade Mark Law ◽  
Blocking Injunctions

This chapter discusses UK case law in the domain of intermediary liability and trade mark infringement, while situating this common law perspective within EU trade mark law, the e-Commerce Directive, and the Enforcement Directive. The chapter first describes liability stemming from legal principles which are not particular to intermediaries, including primary and accessory liability of online intermediaries for trade mark infringement. Later, the chapter reviews liability depending on the application of principles which are specific to intermediaries, the intermediary liability proper. In this context, the chapter looks into injunctions against intermediaries whose services are used to infringe trade marks that are made available in national jurisdictions under the implementation of Article 11 of the Enforcement Directive. Although other kinds of injunctions against intermediaries are available, the chapter focuses on website-blocking injunctions, which have been recently ported from the copyright domain, where they have been more traditionally deployed, to the trade mark domain.

Padlocked to an export exemption? The OEM-related trade mark dispute in China

2019 ◽  
Vol 9 (1) ◽  
pp. 3-21
Author(s):  
Lizhou Wei
Keyword(s):  
Trade Mark ◽  
Third Parties ◽  
Cross Border ◽  
Trade Mark Infringement ◽  
Policy Objectives ◽  
Per Se ◽  
The Right ◽  
Open Question ◽  
Related Trade ◽  
The Eu

Should a trade mark owner have the right to prevent third parties from affixing a trade mark to products intended for export? This problem has attracted less attention in the EU and US than it deserves. In comparison, Chinese courts have had to stand on this issue in the last decades when adjudicating on the cross-border OEM cases. Since the judicial opinion of the Chinese Supreme People's Court has always been in flux with the change of the presiding judge of the IP tribunal, this remains an open question in China. In practice, most Chinese courts are inclined to accept the export exemption rule and deny that OEM activities constitute trade mark infringement. This article questions the export exemption rule and calls for a return to the strong-protection approach. It is proposed that affixing a trade mark to products per se constitutes trade mark infringement irrespective of where the products are to be sold, which is more dogmatically coherent with the legal materials and also in line with the existing policy objectives in China.

MAIN SPECIFICATIONS OF ASSESSING ACTIVITIES OF MINOR IMPORTANCE OF IN MODERN CRIMINAL LAW

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 83-95
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Criminal Code ◽  
The Other ◽  
European Countries ◽  
Minor Importance ◽  
Detailed Review

The research includes the full and the detailed overview of assessing activities of minor importance in Georgian Criminal Law. The Article 7 of the Criminal Code of Georgia states the following: a crime shall not be an action that, although formally containing the signs of a crime, has not produced, for minor importance, the prejudice that would require criminal liability of its perpetrator, or has not created the risk of such harm. The research includes the main criteria of defining activities as activities of minor importance. The detailed review of Georgian case law is also introduced, as well as, legislation, judicial literature and experience of the other European countries.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

Formation of contracts for the international sale of goods under Korean law and the CISG

2017 ◽  
Vol 21 (3) ◽  
pp. 208-223
Author(s):  
Byung Mun Lee
Keyword(s):  
Comparative Study ◽  
Design Methodology ◽  
Case Law ◽  
The Other ◽  
Basic Question ◽  
Content Type ◽  
International Sale Of Goods ◽  
The Comparative Study ◽  
International Sales ◽  
Insight Into

Purpose The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a comparative way and introduce the relevant proposed rules under the Amendment Draft of the Korean Civil Code (KCC). In addition, it attempts to compare and evaluate them in light of the discipline of comparative law. Design/methodology/approach In order to achieve the purposes of the study, it executes a comparative study of the rules as to the formation of contracts of the CISG, Korean law and the Amendment Draft of the KCC. The basic question for this comparative study is placed on whether a solution from one jurisdiction is more logical than the others and to what extent each jurisdiction has responded to protect the reasonable expectations of the parties in the rules as to the formation of contracts. Findings The comparative study finds that most of the rules under the CISG are quite plausible and logical and they are more or less well reflected in the proposals advanced by the KCC amendment committee. On the other hand, the other rules under the CISG which have brought criticisms in terms of their complexity and inconsistent case law invite us their revision or consistent interpretation. The drawbacks of the CISG have also been well responded in the Amendment Draft of the KCC. Nevertheless, it is quite unfortunate that the Amendment Draft of the KCC still has a rule that regards any purported performance with non-material alteration of the terms of an offer as an acceptance. Originality/value This study may provide legal and practical advice to both the seller and the buyer when they enter into a contract for international sales of goods. In addition, it may render us an insight into newly developed or developing rules in this area and show us how they interact with each other. Furthermore, it may be particularly useful in Korea where there is an ongoing discussion for revision of the KCC.

The butterfly squid Stoloteuthis leucoptera in the Mediterranean

1991 ◽  
Vol 71 (1) ◽  
pp. 47-51 ◽  
Author(s):  
Lidia Orsi Relini ◽  
Daniela Massi
Keyword(s):  
Life Cycle ◽  
Adult Male ◽  
The Other ◽  
Otter Trawl ◽  
Ligurian Sea ◽  
The Mediterranean ◽  
Unique Species ◽  
Recent Immigration

The presence of Stoloteuthis leucoptera in the Mediterranean is recorded on the basis of three specimens, including an adult male, caught by IKMT and by commercial otter-trawl in the Ligurian Sea. The hypothesis of a recent immigration is discussed.The list of Mediterranean cephalopods (Mangold Wirz, 1963; Torchio, 1968; Bello, 1986; Mangold & Boletzsky, 1987) includes the Sepiolidae of the subfamily Heteroteuthinae, whose members are supposed to be pelagic throughout their life cycle. Mangold Wirz (1963) recognizes in the Mediterranean fauna the unique species Heteroteuthis dispar, the other authors include H. atlantis Voss, which Voss himself (1955) reported at Messina. To this group may now be added Stoloteuthis leucoptera (Verrill, 1878) a species until now recorded in limited Atlantic areas. Verrill (1881) wrote “This species is an exceedingly beautiful one, when living, owing to the elegance and brilliancy of its colours and the gracefulness of its movements. In swimming it moves its fins in a manner analogous to the motion of the wings of a butterfly.”

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