Transcript EU Law Free Movement of Goods

EU Law
Industrial Policy & Standards
Jane Winn
Tom Daemen
February 24, 2009
Administrative Matters
• Optional Exam Review Session
– Thursday 3/12 from 12:30-1:20 in Gates 117
• Homework due beginning of class 3/10
– Any case, any supplemental reading, not limited to 2nd half of quarter
• Please send me email confirmation of approved topics for students
writing papers in lieu of exam
• Exam policies
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Pick up take home exam starting Friday 3/13 return by Friday 3/20
Should be able to finish in 1 day
Strict word limit similar to homework
Must be typed, must be handed in in hard copy, not electronic form
Completely open book, new research not encouraged, use of assigned
materials highly encouraged
– Focus of questions, style of answer similar to homework
– Students can change from paper to exam if exam turned in by 3/20
Comparative Advertising
• Introduction to Trademark and Unfair
Competition Law
• Economics of Advertising
• US comparative advertising pioneer
– Intensely competitive retail market
• EU hostility to comparative advertising
– Protect business, not consumers
– EU driving force for reform, impact at member
state level limited
IP Basics: Four Main Categories
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Patent
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Copyright
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Sometimes federal law, sometimes state law
Marks that identify a unique source of goods or services
Not so easy to get, pretty strong protection, no limit to lifespan
Example: Blue Note Jazz Club in New York & Missouri
Trade secrets
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Defined by federal law
Original works of authorship
Easy to get, “thin” protection, can last 100 years
Example: this presentation
Trademark
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Defined by federal law
Inventions or discoveries
Hardest to get, strongest protection, shortest lifespan
Example: RIM/Blackberry litigation settled for $612 million
Defined by state law
Economically valuable confidential information
Lots of work to get, pretty limited protection, no limit to lifespan
Example: Coca-Cola formula
No intellectual property rights for just ideas, anything not protected is in public domain
Property versus Contract
– Property rights are good against the whole world
– Contract rights only binding on parties to contract, not third parties
US Trademark Introduction I
• Protects public reputation of businesses in order to
protect consumers’ expectations, make markets
more efficient by reducing confusion
– Identifies a unique source of goods (trade mark) or
services (service mark)
– New brands should not confuse consumers
– How to prove infringement? Hire social scientists to
survey consumers for proof of confusion
• Common law trademark under state law
– Winn Knowledge Management
US Trademark Introduction II
• Lanham Act federal trademark statute provides for optional
registration
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Intent to use registration before first use
Register trademark after “use in commerce”
Trademark examiner will grant only if no prior trademarks can be found
Benefits of registration: notice to the world of the claim; presumptive
ownership until non-contestable; exclusive right to use mark in
connection with goods or services listed in registration
• TM or SM while application pending, once granted, then OK to use
• Federal law and some states prohibit “dilution” of famous
trademarks
– No “Tiffany of Law Schools” allowed
®
German Trademark Law
• Rudolf Rayle, The Trend Toward Enhancing Trademark
Owners’ Rights—A Comparative Study of US and
German Trademark Law, 7 J. Intell. Prop. L. 227 (2000)
• Closer to US idea of copyright & patent: property right
of owner, not business tort or consumer protection
– Not merely signaling product origin to consumers but
“expression of an entrepreneur's achievement motivation”
• 1989 EU Trademark Directive inclined toward this
property rights interpretation of trademark more than
traditional source identifying function
What is Potlatch?
• The potlatch is a festival or ceremony practiced among
Indigenous peoples of the Pacific Northwest Coast. At
these gatherings a family or hereditary leader hosts
guests in their family's house and hold a feast for their
guests. The main purpose of the potlatch is the redistribution and reciprocity of wealth.
Economics of Advertising
• Are advertisements a waste of resources?
– Perfect competition requires information, but many
ads do not inform
• Advertisements as productive
– Advertisements as “potlatch” to show success of
brand
– Advertisements as signal of commitment to protecting
brand
• Advertising as complement
– Learning to be stylish
Introduction to US Advertising Law
• Regulated by Federal Trade Commission & State Attorneys
General under unfair and deceptive trade practices authority
– http://www.ftc.gov/bcp/menus/business/adv.shtm
– Self-regulation: Better Business Bureau National Advertising Division
• FTC basic requirements
– Advertising must be truthful and non-deceptive
– Advertisers must have evidence to back up their claims
– Advertisements cannot be unfair
• Advertisers must be able to substantiate claims
– Disclaim possible incorrect inferences: “results may vary”
• Mostly context specific interpretation: what impression would
ad make on reasonable person?
– A few mandatory limits on use of some terms: “going out of business
sale” or disclosure of payments for celebrity endorsements
• First Amendment right to use trademarks in commercial speech
– No right to infringe or dilute trademark
Comparative Advertising &
Competition Policy
• In the past, what differences were there between
US and most EU countries re: comparative
advertising? (pp 4-14)
• How does US regulate comparative advertising
today?
• How did EU regulation of comparative advertising
change with Directive 97/55/EC?
– What do the BA v. Ryanair and Sabena v. Ryanair cases
show about harmonization of comparative advertizing
law in the EU after the Directive? (pp. 17-20