scholarly journals What Should Constitute Infringement of a Non-Traditional Mark?

2018 ◽  
pp. 165-184
Author(s):  
Michael Handler
Keyword(s):  
New Zealand ◽  
Full Range ◽  
Third Parties ◽  
Third Party ◽  
Registration System ◽  
Product Features ◽  
Breathing Room ◽  
Trademark Use

Various “defensive doctrines” might be employed to create space for third parties wishing to make legitimate use of features of registered non-traditional marks. This chapter explores one such doctrine: a requirement that infringing use be “use as a trademark.” This doctrine, as it has been developed in countries such as Australia and New Zealand in cases involving non-traditional marks, is more complex than is often appreciated. At times it has been stretched to accommodate worthy policy considerations, which has caused tensions with other aspects of the registration system. At other times it has been applied too restrictively, unduly limiting the scope of permissible third party use of product features. The chapter offers suggestions as to how “trademark use” might be recalibrated to manage the full range of concerns raised by non-traditional marks, in a manner that affords owners adequate protection while leaving sufficient breathing room for third party users.

scholarly journals Instruments to Challenge the Grant of a Patent as a Third Party: Suggestions for the Review of New Zealand's Patent System

2021 ◽  
Author(s):  
◽  
Juliane Buchinski
Keyword(s):  
New Zealand ◽  
Current System ◽  
Patent Law ◽  
Third Parties ◽  
Patent System ◽  
Third Party ◽  
Regulatory Regime ◽  
Negative Effect ◽  
The Government

<p>In recent decades, intellectual property law (in particular patent law) has had to face new challenges due to the accelerating development of technology. Patents can have a negative effect on a country's economy if too many invalid or overly broad patents are granted. Such patents have the potential to impose high costs on society without providing substantial benefits. If a patent regime cannot avoid the grant of such patents, or does not provide instruments to remove them from the register, the negative effect may stifle innovation instead of encouraging it. In 2008, in consideration of these problems, the government of New Zealand introduced a Patents Bill. This Bill is the culmination of the government's review process, which started in the late 1980s. The aim of the Bill is to update New Zealand's patent law in order to bring it in line with international practise and to reduce the costs to society arising from invalid and overly broad patents. The provisions of the Bill cover all principal aspects of the patent regime: standards of examination and procedures, challenges on the grant of a patent, and provisions for updating the regulatory regime for patent attorneys. This dissertation focuses on analysing how the quality of New Zealand's patents could be enhanced using the knowledge and experience of third parties. Because the current examination standards may allow the grant of overly broad patents, this dissertation analyses specifically which changes in the examination procedure could help prevent the grant of "bad" patents without overburdening the resources of the IPONZ. In the next step, the dissertation analyses third-party instruments under the current patent system and under the Patents Bill 2008, proving that neither approach by itself would be sufficient to bring about an effective patent reviewing system for New Zealand. The approach under the current system is too expensive and has the potential to delay the granting procedure, whereas the approach proposed by the Patents Bill 2008 limits the influence of third parties before the grant of a patent to such an extent that most patents may remain in the register. The overall aim of this dissertation is to suggest a new approach that includes aspects of both of the others in order to find a balanced solution and an optimal fit for the specific needs of New Zealand.</p>

scholarly journals Instruments to Challenge the Grant of a Patent as a Third Party: Suggestions for the Review of New Zealand's Patent System

2021 ◽  
Author(s):  
◽  
Juliane Buchinski
Keyword(s):  
New Zealand ◽  
Current System ◽  
Patent Law ◽  
Third Parties ◽  
Patent System ◽  
Third Party ◽  
Regulatory Regime ◽  
Negative Effect ◽  
The Government

<p>In recent decades, intellectual property law (in particular patent law) has had to face new challenges due to the accelerating development of technology. Patents can have a negative effect on a country's economy if too many invalid or overly broad patents are granted. Such patents have the potential to impose high costs on society without providing substantial benefits. If a patent regime cannot avoid the grant of such patents, or does not provide instruments to remove them from the register, the negative effect may stifle innovation instead of encouraging it. In 2008, in consideration of these problems, the government of New Zealand introduced a Patents Bill. This Bill is the culmination of the government's review process, which started in the late 1980s. The aim of the Bill is to update New Zealand's patent law in order to bring it in line with international practise and to reduce the costs to society arising from invalid and overly broad patents. The provisions of the Bill cover all principal aspects of the patent regime: standards of examination and procedures, challenges on the grant of a patent, and provisions for updating the regulatory regime for patent attorneys. This dissertation focuses on analysing how the quality of New Zealand's patents could be enhanced using the knowledge and experience of third parties. Because the current examination standards may allow the grant of overly broad patents, this dissertation analyses specifically which changes in the examination procedure could help prevent the grant of "bad" patents without overburdening the resources of the IPONZ. In the next step, the dissertation analyses third-party instruments under the current patent system and under the Patents Bill 2008, proving that neither approach by itself would be sufficient to bring about an effective patent reviewing system for New Zealand. The approach under the current system is too expensive and has the potential to delay the granting procedure, whereas the approach proposed by the Patents Bill 2008 limits the influence of third parties before the grant of a patent to such an extent that most patents may remain in the register. The overall aim of this dissertation is to suggest a new approach that includes aspects of both of the others in order to find a balanced solution and an optimal fit for the specific needs of New Zealand.</p>

Cláusulas de franquicia o deducible en seguros de responsabilidad civil en el Derecho español: Naturaleza y efectos respecto de terceros perjudicados

2018 ◽  
pp. 101
Author(s):  
Rafael Lara González
Keyword(s):  
Civil Liability ◽  
Third Parties ◽  
Insurance Contract ◽  
Third Party ◽  
Liability Insurance ◽  
Legal Doctrine ◽  
Insurance Contracts ◽  
Spanish Law ◽  
Palabras Clave ◽  
Legal Nature

ResumenPese a su ubicuidad en la práctica contractual, las cláusulas de franquicia han recibido tratamiento incidental en la doctrina. La discusión sobre ellas se ha enfocado en los contratos de seguros de responsabilidad civil, y en la interpretación del artículo 76 de la Ley española de Contrato de Seguro. En este contexto se ha tratado de establecer si el asegurador puede o no oponer la cláusula de franquicia al tercero perjudicado. El presente trabajo analiza la cláusula de franquicia en la obligación principal del asegurador, su naturaleza jurídica, y examina su relación con los terceros perjudicados. La consideración principal a este respecto estará en si nos encontramos ante un seguro obligatorio o ante un seguro voluntario de responsabilidad civil. Palabras clave: Contrato de seguro; Cláusula de franquicia; Terceroperjudicado; Responsabilidad civil.AbstractDespite their ubiquity in contractual praxis, deductible clauses have received only incidental treatment in legal doctrine. Discussion on them has focused on civil liability insurance contracts, and the interpretation of article 76 of the Spanish Law of Insurance Contracts. In this context it has been attempted to establish whether the insurer can invoke the clause to oppose the injured third party's claim. This article examines the deductible clause included in the insurer's main obligation, its legal nature, and its relation to injured third parties. The main consideration in this regard will be whether the insurance contract is of a mandatory or voluntary nature.Keywords: Insurance contract; Deductible clause; Injured third party; Civil liability.

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 Under the Taiwan Civil Code

2018 ◽  
Author(s):  
Sheng-Lin JAN
Keyword(s):  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Legal Relationship ◽  
The Third Party ◽  
Privity Of Contract

This chapter discusses the position of third party beneficiaries in Taiwan law where the principle of privity of contract is well established. Article 269 of the Taiwan Civil Code confers a right on the third party to sue for performance as long as the parties have at least impliedly agreed. This should be distinguished from a ‘spurious contract’ for the benefit of third parties where there is no agreement to permit the third party to claim. Both the aggrieved party and the third party beneficiary can sue on the contract, but only for its own loss. The debtor can only set off on a counterclaim arising from its legal relationship with the third party. Where the third party coerces the debtor into the contract, the contract can be avoided, but where the third party induces the debtor to contract with the creditor by misrepresentation, the debtor can only avoid the contract if the creditor knows or ought to have known of the misrepresentation.

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.

scholarly journals Creation of Technical Conditions for Use or Infringement – The Meanders of the Warehouse Keeper’s Liability in Light of CJEU Judgment C-567/18 Coty Germany

2021 ◽  
Vol 52 (3) ◽  
pp. 265-282
Author(s):  
Krystyna Szczepanowska-Kozłowska
Keyword(s):  
Property Rights ◽  
Point Of View ◽  
Literal Meaning ◽  
Property Right ◽  
Third Party ◽  
Property Law ◽  
Industrial Property ◽  
The Absolute ◽  
The Law ◽  
Trademark Use

AbstractOne form of industrial property right infringement is stocking for the purpose of offering or marketing. This form of infringement appears both in EU legal acts on trademarks or designs, as well as in national regulations, including those concerning patents. What is specific to stocking when compared to other activities comprising the stipulated exclusivity of the holder of industrial property rights is the fact that the literal meaning of “stocking” does not explain whether the infringing party or the warehouse keeper is the entity that places the goods in storage. The structure of industrial property rights as absolute rights would theoretically permit the view that the law is violated by both the entity that accepts the goods for storage and the entity that places such goods in storage. To determine if there is an infringement, it must be established what the goods being stocked are further intended for. It is not without significance that the finding of an infringement of industrial property rights does not depend on fault or awareness. From the point of view of the industrial property law regime, it is difficult to find arguments against this understanding of infringement by stocking. Since the offeror of goods infringing industrial property rights may be held liable even if the goods have not yet been manufactured, it is conceivable that the entity accepting such goods for stocking is also liable. This interpretation of the concept of stocking would certainly correspond to the absolute nature of liability for infringement.In a recent judgment the CJEU confirmed that the warehouse keeper who, on behalf of a third party, stores goods which infringe trademark rights only creates the technical conditions for trademark use by this third party provided that the warehouse keeper is not aware of that infringement. The CJEU also confirmed that only the person who decides about the purpose of storing the goods can be treated as an infringer. However, the CJEU did not respond to the question regarding whether the warehouse keeper could be treated as an infringer if it pursues the aims of storing the goods at the request of the entity that put the goods into storage.

Energy method for modelling delamination buckling in geometrically constrained systems

2003 ◽  
Vol 217 (9) ◽  
pp. 1015-1026 ◽  
Author(s):  
B J Hicks ◽  
G Mullineux ◽  
C Berry ◽  
C J McPherson ◽  
A J Medland
Keyword(s):  
Finite Element ◽  
Full Range ◽  
Constrained Systems ◽  
Third Party ◽  
Constrained System ◽  
Finite Element Approach ◽  
Delamination Buckling ◽  
Element Approach ◽  
Geometrically Constrained ◽  
Energy Formulation

Delamination buckling analysis of laminates is of considerable interest to the mechanical and materials engineering sectors, as well as having wider applications in geology and civil engineering. With advances in computing power, the ability to model ever increasingly complex problems at more detailed levels becomes more of a reality. However, many of the common finite element packages, with the exception of all but the most specialized, do not perform particularly well where complex non-linear problems are dealt with. In many cases, these packages can fail to determine the full range of solutions or accurately predict the properties and geometry of the final state. This is particularly the case where large deformations and buckling of laminates are considered. Because of this, many researchers prefer to use what they perceive to be more reliable techniques, such as the symbolic computation of the underlying differential equations, rather than finite element approaches. The use of finite element packages is further frustrated by the steep learning curve and implicit restrictions imposed by using third-party software. In this paper, a finite element approach and an energy formulation method are considered and used to model the delamination buckling in a geometrically constrained system. These methods are compared with experimental results and their relative merits are discussed. In particular, the accuracy and the ability to represent the geometry of the buckled system are discussed. Both the finite element approach and the energy formulation are described in detail and the numerical results are compared.

Foulweather Friends: Violence and Third Party Support in Self-Determination Conflicts

2021 ◽  
pp. 002200272199322
Author(s):  
R. Joseph Huddleston
Keyword(s):  
Foreign Policy ◽  
Latent Variable ◽  
Third Parties ◽  
Self Determination ◽  
Third Party ◽  
Variable Model ◽  
Major Powers ◽  
International Stability ◽  
General Preference ◽  
Party Support

This paper investigates how violence in self-determination conflicts influences bilateral foreign policy. I argue that a general preference for international stability causes third parties to support self-determination groups when violence reaches high levels, when they gain territorial control, and when major powers officially recognize. In these conditions, third parties perceive a stable new status quo to be nigh: unrecognized statehood. Ongoing instability encourages foreign policy that encourages the development of the de facto state, even when third parties have no intention of recognizing them as states. Importantly, I also show that targeting civilians erodes third-party support of the perpetrating side. I demonstrate these relationships using a latent variable model of international sovereignty of aspiring states, built on bilateral military, diplomatic, and economic exchange data. My model and tests provide new insight into how aspiring state actors become increasingly eligible for recognition through the tacit support of third-party states.

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