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.

scholarly journals An economic approach to parallel imports effects and competition policy

2020 ◽  
Vol 6 (3) ◽  
pp. 315-338
Author(s):  
Yannis Katsoulacos ◽  
Kalliopi Benetatou
Keyword(s):  
Market Integration ◽  
Consumer Welfare ◽  
Parallel Imports ◽  
Rule Of Reason ◽  
Policy Objectives ◽  
The Subject ◽  
Per Se ◽  
The Right ◽  
The Eu ◽  
Opposite Extreme

Parallel imports have been treated very differently in different countries. In the EU, competition law’s very strong (per se) prohibition of restrictions to parallel imports (PI) can be justified by traditional “public interest” concerns related to the EU’s objective to promote free trade and market integration. At the opposite extreme, we have had Russia’s Per Se prohibitions of PI, which can be potentially justified by the country’s industrial policy objectives of protecting its domestic industries. While there is no evidence of a shift in policy by the European Commission (EC) and the EU, there is evidence of a shift in policy in Russia away from the per se prohibition of PI and a recognition that “in some cases” PI should be considered legal. We consider this shift in Russian policy as a shift in the right direction, while we consider unjustified the continuation of EC policy of per se prohibition of restrictions to PI. Our analysis points towards a middle ground in which any question of whether restrictions of PI must be prohibited or not should be the subject of rule-of-reason investigations of the specific economic facts of each case and what these imply for welfare (and, specifically, consumer welfare).

European Arrest Warrants and Minimum Standards for Trials in absentia – Blind Trust vs. Transnational Direct Effect?

2021 ◽  
Vol 11 (3) ◽  
pp. 275-287
Author(s):  
Martin Böse
Keyword(s):  
Mutual Recognition ◽  
Minimum Standard ◽  
Minimum Standards ◽  
Cross Border ◽  
Court Of Justice ◽  
European Arrest Warrant ◽  
The Right ◽  
Procedural Rights ◽  
Cross Border Cooperation ◽  
The Eu

The right of the accused person to be present at the trial and defend himself in person forms an essential part of the right to a fair trial. In this regard, the minimum standard enshrined in Art. 6 ECHR has been further developed by the minimum rules on procedural rights established by the EU legislator. According to a recent judgment of the Union’s Court of Justice, the Framework Decision on the European Arrest Warrant still allows the executing state to surrender a person convicted in absentia even if the EU minimum standard is not met. This paper will argue that common minimum standards have repercussions on cross-border cooperation based on mutual recognition and may emerge as a ground for refusal.

NATIONAL MECHANISMS OF REGULATION OF CROSS-BORDER COPYRIGHT RELATIONS AIMED AT PROTECTION OF ORPHAN WORKS

Lex Russica ◽  
2019 ◽  
pp. 18-29
Author(s):  
G. K. Dmitrieva ◽  
O. V. Lutkova
Keyword(s):  
International Law ◽  
Legal Protection ◽  
Single Copy ◽  
Legal Regulation ◽  
Copyright Holder ◽  
Conflict Of Laws ◽  
Cross Border ◽  
The Usa ◽  
The Right ◽  
The Eu

The article has investigated the mechanisms of the national (both legal and non-legal) regulation of orphan works, i.e. works the holder (holders) of rights to which is (are) not identified and/or the location of the rights-holder is not established. Orphan works are supposedly protected by copyright, which means the validity of exclusive rights and the potential need to obtain permission from the copyright holder for any form of using the works under consideration, namely: reproduction including digitization, translation, processing, etc. However, in a situation where the right holder is not determined (is unavailable), the user does not have an objective opportunity to obtain such a permission, and the work actually remains unknown to the society, although it can be of artistic, cultural or historical value. Since the beginning of the new millennium, the national legal systems of a number of States have establish a special regime for the legal protection of orphan works, and about 20 states of the world have developed the foundations of such a regime so far. The article analyzes the regulation of orphan works in several states — in the EU and its member states, Great Britain, the USA, Canada, Korea, Japan, India. The authors have determined the foundations of the substantive and conflict of laws regulation of cross-border relations regulating orphan works. Features of regulation of works with an unidentified author in the era of a network society are highlighted: in particular, the need to digitize orphan works, since many of them are in a single copy on the medium ruined by time, and the fact that the digitized work can instantly spread from databases to other jurisdictions. The authors provide for the forecast of possible ways of evolution of legal regulation of relations in question with the use of mechanisms of national and international law.

scholarly journals Where there is a will, there is a way: some remarks on institutional distance in the Polish-German borderland

2021 ◽  
Vol 9 (1) ◽  
pp. 39-62
Author(s):  
Łukasz Wróblewski
Keyword(s):  
Local Government ◽  
Research Method ◽  
Institutional Distance ◽  
Council Of Europe ◽  
Cross Border ◽  
Domestic Legislation ◽  
The Subject ◽  
Per Se ◽  
Cross Border Cooperation ◽  
The Eu

This study concerns the problem of institutional distance between local government units, and its impact on the cross-border cooperation of regional and local authorities in the Polish-German borderland. Contrary to cross-border cooperation per se, the analyzed notion is not featured regularly in the subject literature. Above all, the existing studies focus on the forms of, barriers to, and conditions for cross-border cooperation, the assessment of cross-border cooperation projects co-financed by the EU, and the broadly conceived social and economic cross-border ties. On the other hand, there is a shortage of studies analyzing the competencies of various local government units with regard to cross-border cooperation. Hence, this article examines the competencies of local government units with respect to cross-border cooperation based on the example of the Polish-German borderland. The adopted research method involves the analysis of the subject literature, domestic legislation in Poland and Germany, and the documents and legal acts of the Council of Europe and the EU.

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.

scholarly journals Tracing Individuals under the EU Regime on Serious, Cross-border Health Threats: An Appraisal of the System of Personal Data Protection

2017 ◽  
Vol 8 (4) ◽  
pp. 700-722 ◽  
Author(s):  
Patrycja DĄBROWSKA-KŁOSIŃSKA
Keyword(s):  
Data Protection ◽  
Personal Data ◽  
Integrated Approach ◽  
Border Health ◽  
Health Security ◽  
Personal Data Protection ◽  
Cross Border ◽  
Health Threats ◽  
The Right ◽  
The Eu

AbstractThe article tackles the issue of personal data protection in case of tracing (looking for) individual persons who have been exposed to health risks pursuant to the EU Decision 1082/2013 on Serious, Cross-border Health Threats. This problem exemplifies just one among many challenges of the health-security nexus in the EU. That is, it regards a certain trade-off between the limitation of individual rights and securing populations’ safety. The text appraises the safeguards for the (lawful) limitation of the right to data protection after an in-depth examination of the provisions of the Health Threats Decision, its implementing measures, the reports on its operation, and in light of the general EU data protection laws. In conclusion, it claims that a number of improvements are needed because of the incompleteness, and the insufficient coherence and transparency of the EU regime for health threats. The established shortcomings are, at least in part, caused by the new EU “integrated approach” to health and security. In effect, an overall philosophy of reforms of public health policy in the name of “all-hazards security” applied in the Health Threats Decision can result in a reduction of the adequate level of protection of individuals’ personal data.

scholarly journals EU Coordination of Serious Cross-Border Threats to Health: The Implications for Protection of Informed Consent in National Pandemic Policies

2019 ◽  
Vol 10 (4) ◽  
pp. 635-651
Author(s):  
Hannah VAN KOLFSCHOOTEN
Keyword(s):  
Public Health ◽  
Informed Consent ◽  
Disease Outbreaks ◽  
Member States ◽  
Case Study Analysis ◽  
Cross Border ◽  
The Individual ◽  
The Right ◽  
The Eu

This article discusses the development of a more supranational EU approach to regulate risks of “serious cross-border threats to health” such as pandemic disease outbreaks. It argues that the EU’s public health measures to prevent and tackle pandemics could affect individual patients’ rights, because the rights of individual European citizens are balanced against the importance of protecting the European community as a whole. This results in a tension between public health and individual rights in the EU, especially with regard to the right to informed consent, a central right in health law. In response to the 2013–2016 Ebola outbreak in West Africa, the EU introduced several preventive and responsive measures in the Member States to prevent the pandemic from spreading to the EU. The case study analysis of Dutch pandemic policies established in reaction to this outbreak shows that national pandemic policies are substantially shaped by EU actions, which has implications for the protection of the individual right to informed consent in the Member States.

Sign in / Sign up

Export Citation Format

Share Document