A “strong” trade mark, one which has a high level of distinctiveness, is entitled to a greater level of protection in the European Union, the United Kingdom and the United States than other weaker marks. The psychological and marketing evidence suggests that, in fact, stronger marks are less likely to be confused by consumers. Accordingly, courts and tribunals are required to...
In the age of automated commerce, powered by artificial intelligence and machine learning (AI/ML) tools, the role of trademarks in shopping may be diminishing. For instance, the Alexa voice assistant will announce only a couple of purchase options under specific trademarks, concealing the plenitude of other products on its interface. Another example is that Amazon will pursue the...
With the evolution of generative AI systems, machine-made productions in the literary and artistic field have reached a level of refinement that allows them to replace human creations. The increasing sophistication of AI systems will inevitably disrupt the market for human literary and artistic works. Generative AI systems provide literary and artistic output much faster and...
The Constitutional Court of South Africa recently handed down its fourth decision so far in the field of intellectual property. These decisions came against the backdrop of reforms and reform proposals concerning intellectual property rights in South Africa. These reforms and reform proposals were prompted by the need to establish intellectual property laws that are attuned to...
This paper analyzes the criteria for applying the essential facilities doctrine to intellectual property rights and the possibility of applying it in cases where Big Data is the alleged essential facility. It aims to answer the research question: “What are the specifics of the intellectual property criteria in essential facilities cases and are these criteria applicable to Big...
Although Art. 14 of the Directive on Copyright in the Digital Single Market (CDSM Directive) was introduced mostly to deal with issues connected with non-original photographs of public domain works, it also impacts the protection of posthumous and critical editions. Whenever a work of visual art that belongs in the public domain becomes the object of an edition, Art. 14 CDSM...
The sui generis database right is an intellectual property right created in the European Union to stimulate investment in the curation of databases. Since its inception, communities engaged in research and development efforts have questioned its potential to incentivise database production, and posit that it stifles productive downstream uses of existing datasets. European courts...
EU case-law has long considered trade mark applications made in bad faith to be dishonest practice that involves a sign used by a third party. This approach stems from the crucial factors of bad faith stipulated by the CJEU in the Lindt case C-529/07. However, recent CJEU case-law clearly suggests that a trade mark application can also be alleged to be in bad faith when it has...
Almost two decades after the last landmark act of EU copyright harmonization (InfoSoc Directive, 2001/29/EC), and after a number of narrow, targeted interventions on specific topics, the EU legislator has issued another historical directive touching key pillars of copyright law (2019/790/EU, CDSMD). It is still too early to evaluate the impact this act will have on the digital...
It is commonly lamented that geographical indications (GIs) receive extravagant protection under European Union (EU) law. Yet due to the special nature of GIs it can be hard to conceptualize sensible limitations to protection and so far the question where such limits (if any) should lie has received little attention in scholarship. This article advances the argument for a “due...
Rights management information is copyright metadata legally protected by copyright law. The origin of such protection was a United States policy for governance of the information superhighway (the internet) and digital networks. The main discussion documents leading up to the WIPO internet treaties reveal that the policy behind protecting the integrity of copyright metadata was...
This study juxtaposes copyright law in the European Union (EU), the United States (US) and the People’s Republic of China (China). After mapping major differences and similarities in copyright law between the three jurisdictions, possible reasons will be explored for the divergence and convergence detected. Findings indicate that many of the similarities as well as differences in...
The interaction between artificial intelligence and intellectual property rights (IPRs) is one of the key areas of development in intellectual property law. After much, albeit selective, debate, it seems to be gaining increasing practical relevance through intense AI-related market activity, an initial set of case law on the matter, and policy initiatives by international...
The grounds for refusal or invalidity relating to trade marks filed in bad faith or being contrary to public policy or accepted principles of morality are based entirely on undefined concepts and require a value judgement to be made by the adjudicating authorities. This openness has led to the exploration of new lanes for these grounds in case law beyond the traditional scope of...