scholarly journals Which Kraft of Statutory Interpretation? A Supreme Court of Canada Trilogy on Intellectual Property Law

2008 ◽  
Vol 46 (1) ◽  
pp. 1 ◽  
Author(s):  
Cameron J. Hutchison
Keyword(s):  
Intellectual Property ◽  
Supreme Court ◽  
Judicial Discretion ◽  
Property Law ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Intellectual Property Law ◽  
Law Making

The techniques used by courts to interpret statutes can be characterized as inconsistent, and at times, excessive. Current methodologies of statutory interpretation often reflect deeply normative views about the appropriate institutional role of the legislative and judicial branches of law-making, but this characterization of the debate is misleading. Rather, the problem lies with properly discerning legislative meaning and intent in full awareness of the limitations and possibilities of statutes as communicative devices. The author suggests a new methodology of statutory interpretation, whereby courts analogize the facts before them with certain paradigm cases. This methodology serves to constrain judicial discretion and enables courts to fill gaps in legislation in connection with novel cases.

Summary of Results

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Intellectual Property ◽  
Supreme Court ◽  
Government Agencies ◽  
Property Law ◽  
Trademark Law ◽  
Intellectual Property Law ◽  
The Past ◽  
The Supreme Court ◽  
The Government ◽  
Networked Economy

The persuasive force of the accepted account’s property logic has driven antitrust and intellectual property law jurisprudence for at least the past three decades. It has been through the theory of trademark ownership and the commercial strategy of branding that these laws led the courts to comprehend markets as fundamentally bifurcated—as operating according to discrete types of interbrand and intrabrand competition—a division that had an effect far beyond the confines of trademark law and resonates today in the way government agencies and courts evaluate the emerging challenges of the networked economy along the previously introduced distinction between intertype and intratype competition. While the government in its appeal to the Supreme Court in ...

From Market Access to Cumulative Innovation

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Intellectual Property ◽  
Market Access ◽  
Step Test ◽  
Property Law ◽  
Intellectual Property Law ◽  
Rights Protection ◽  
Intellectual Property Rights Protection ◽  
Property Rights Protection ◽  
Production Output

This chapter argues for a reinvigorated role of the market access doctrine and references a number of important antitrust and intellectual property law decisions in which courts have given priority to market access. It finds a novel function for market access to play within antitrust and intellectual property law liability: courts that grant plaintiffs access to a defendant’s production output should refer to a three-step test under which they inquire (1) whether the inventor, through first-mover advantages, has reaped a sufficient reward such that contractual or intellectual property rights protection would no longer be required to facilitate innovation, (2) whether competitors were able to challenge the proprietary platform’s position in the market without the possibility of granting access, and (3) whether competitors seeking to benefit from market access will make use of it to facilitate the introduction of new goods rather than merely to copy the initial invention.

WIPO's International Registration of Trademarks: An International Administrative Act Subject to Examination by the Designated Contracting Parties

2008 ◽  
Vol 9 (11) ◽  
pp. 1597-1624 ◽  
Author(s):  
Karen Kaiser
Keyword(s):  
Developing Countries ◽  
Intellectual Property ◽  
International Institutions ◽  
World Intellectual Property Organization ◽  
Property Law ◽  
Industrial Property ◽  
Intergovernmental Organization ◽  
Intellectual Property Law ◽  
The World

Although the World Intellectual Property Organization (WIPO) is a technical intergovernmental organization with a limited mandate, it has been entrusted with a panoply of tasks. These include, inter alia, the international harmonization of intellectual property law, the administration of fee-based global intellectual property protection services, and the delivery of dispute resolution services to individuals. While the central role of WIPO in the continuous development of substantive intellectual property law has been questioned by developing countries, the administrative activities of WIPO have remained largely unscathed by critique and, therefore, have not attracted much attention. They revolve around the international filing, registration or recognition of industrial property rights, such as patents, industrial designs and trademarks, and provide an interesting perspective on the law of international institutions.

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