Trademark Transactions in EU Law – Refining the Approach to Selective Distribution Networks and National Unfair Competition Law
Given the rudimentary nature of the current set of EU rules, the regulation of trademark transactions in the EU depends on a harmonious interplay of harmonized EU law on the one hand, and individual national laws on the other. This configuration of the system places a particular responsibility on the Court of Justice of the European Union. Interpreting harmonized EU rules, the Court ought to consider the impact of its decision on the proper functioning of national law. An overambitious approach seeking to maximize the harmonizing effect of the rudimentary set of EU norms will almost inevitably lead to unsatisfactory results. After a short overview of EU objects of property rules and present amendment proposals, two decisions of the CJEU will be brought into focus to illustrate this point. The decision in Copad/Dior gives rise to concerns about harmonized rules in the Trade Mark Directive becoming a straitjacket offering insufficient breathing space for the reconciliation of licensor, licensee and third party interests, while the case Martin Y Paz/Depuydt sheds light on the potential corrosive effect on national unfair competition law. The analysis shows the structural deficiencies of the current EU system and the need for additional fine-tuning based on both EU and national norms.
Search and Persuasion in Trademark Law
Trademark commentary and case law has long been concerned with the likelihood of two modes of harm: the likelihood of consumer confusion, i.e., the probability that consumers will confuse similar marks, and the likelihood of consumer delusion, i.e., the probability that strong marks will alter through their persuasive power consumers’ preferences. In an effort to expand the scope of trademark protection, trademark apologists (and plaintiffs) tend to argue that there is a high likelihood of consumer confusion. Nevertheless, in an effort to defend the basis of trademark protection, apologists tend to argue that there is a low likelihood of consumer delusion. Trademark restrictionists (and defendants) do the inverse. In an effort to contract the scope of protection, they tend to argue that consumers are not easily confused, but in an effort to attack the basis of protection, they tend to argue that consumers are easily deluded. This Article seeks to analyze these tensions, both doctrinal and ideological, in the trademark literature. To do so, the Article draws upon social science research in consumer behavior to urge the adoption of two conceptions of consumer sophistication: “search sophistication” and “persuasion sophistication.” In analyzing these two conceptions of consumer sophistication, the Article proposes a simple, if partial, explanation for the historic expansion of trademark scope: that it is largely the result of trademark producers’ willingness to assume the search costs of consumers, because, in assuming such costs, producers also garner the means to generate persuasion. Because trademark rights are essentially circular in nature, and because trademark law, a system of instrumental reason, possesses no normative inertia of its own, the law has done little more than subserve this expansionary trend. The result has been the fall of the “sovereign consumer” and the rise of the “sovereign trademark.” † Assistant Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. Many thanks to Bob Brauneis, Julie Cohen, Dan Crane, Justin Hughes, Arthur Jacobsen, John McGinnis, and Amrit Singh for comments made on earlier drafts. The Article greatly benefited from presentations made to the University of Michigan Law School Intellectual Property Workshop, the George Washington University Law School Intellectual Property Speakers Series, and the Cardozo Law School Junior Faculty Workshop. Comments welcome: barton@bartonbeebe.com.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.