Since the 2009 CJEU decision in L'Oréal v Bellure the idea that a brand's image is the property o... more Since the 2009 CJEU decision in L'Oréal v Bellure the idea that a brand's image is the property of the trade mark owner has become increasingly entrenched within European trade mark law. Brand image is now protected even where there is no harm to the underlying mark. However, the courts have largely failed to acknowledge the radical ways in which the marketplace for goods bearing trade marks has changed in the past three decades. One key shift is that businesses and marketers no longer view the brand creation process from a top-down `brand performance' perspective, but, rather, through the prisms of `anthropological marketing' and `consumer performativity'. Through an interdisciplinary approach, this article dissects the process of brand creation in the context of European trade mark law, and argues that the law must take account of consumer agency when the question of who should own brand image arises.
Mcdonagh, Luke T. (2012) Rearranging the roles of the performer and the composer in the music ind... more Mcdonagh, Luke T. (2012) Rearranging the roles of the performer and the composer in the music industrythe potential significance of Fisher v Brooker. Intellectual property quarterly, 1 . pp. 64-76.
... Luke McDonagh PhD Candidate, Queen Mary University of London ... Thirdly, it was reiterated t... more ... Luke McDonagh PhD Candidate, Queen Mary University of London ... Thirdly, it was reiterated that the temporary copying and fair dealing exceptions to copyright must be interpreted narrowly, a point which may be of interest to the ongo-ing Hargreaves Review of Intellectual ...
This article explores the notion of 'integrity' under copyright law by analysing examples of 'int... more This article explores the notion of 'integrity' under copyright law by analysing examples of 'integrity-based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory -'aura', as put forward by Walter Benjamin, and 'trajectory', as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that 'power struggles' are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived;
... Luke McDonagh PhD Candidate, Queen Mary University of London ... Thirdly, it was reiterated t... more ... Luke McDonagh PhD Candidate, Queen Mary University of London ... Thirdly, it was reiterated that the temporary copying and fair dealing exceptions to copyright must be interpreted narrowly, a point which may be of interest to the ongo-ing Hargreaves Review of Intellectual ...
This article investigates the phenomenon of litigation undertaken by Patent Assertion Entities (P... more This article investigates the phenomenon of litigation undertaken by Patent Assertion Entities (PAEs), often referred to as 'patent trolls', within the legal system of the Patents Court (PHC) of England and Wales during the period 2000-2008. Our analysis shows that patent suits involving PAEs at the PHC are rare -they account for less than 6% of all patent cases. We suggest two reasons why the PHC does not provide a welcome venue for PAE litigation. Firstly, the majority of patent cases which reach a judgment in the UK result in a ruling invalidating the patent. Secondly, the costs regime in the legal system of England and Wales requires that the losing party pay the costs of the other side. In other words, even if its own costs are kept low, a PAE which loses a case may have to spend a substantial amount of money in order to cover the costs of the other side. When taken together, it is likely that these two aspects discourage litigation by PAEs at the PHC, which accounts for the low volume of cases when compared with other jurisdictions such as the US. We also offer interesting insights to the wider debate concerning whether it is likely that in the near future there will be a similar increase in PAE litigation in Europe as has already occurred in the US over the last decade. This article also discusses potential implications for the design of the proposed European Unified Patent Court. * Universidad Carlos III de Madrid and SERC LSE, [email protected], London School of Economics (LSE), [email protected], respectively. We gratefully acknowledge financial support from the UK Intellectual Property Office and the ZEW SEEK "Patent Litigation in Europe" project. The views expressed here are those of the authors. They are not necessarily those of the UK Intellectual Property Office. We are indebted to Max Ernicke for his generous advice and help. We benefitted from comments by participants of the 12 th annual Intellectual Property Scholars Conference at Stanford University and seminars at the UK Intellectual Property Office in August and
Since the 2009 CJEU decision in L'Oréal v Bellure the idea that a brand's image is the property o... more Since the 2009 CJEU decision in L'Oréal v Bellure the idea that a brand's image is the property of the trade mark owner has become increasingly entrenched within European trade mark law. Brand image is now protected even where there is no harm to the underlying mark. However, the courts have largely failed to acknowledge the radical ways in which the marketplace for goods bearing trade marks has changed in the past three decades. One key shift is that businesses and marketers no longer view the brand creation process from a top-down `brand performance' perspective, but, rather, through the prisms of `anthropological marketing' and `consumer performativity'. Through an interdisciplinary approach, this article dissects the process of brand creation in the context of European trade mark law, and argues that the law must take account of consumer agency when the question of who should own brand image arises.
Mcdonagh, Luke T. (2012) Rearranging the roles of the performer and the composer in the music ind... more Mcdonagh, Luke T. (2012) Rearranging the roles of the performer and the composer in the music industrythe potential significance of Fisher v Brooker. Intellectual property quarterly, 1 . pp. 64-76.
... Luke McDonagh PhD Candidate, Queen Mary University of London ... Thirdly, it was reiterated t... more ... Luke McDonagh PhD Candidate, Queen Mary University of London ... Thirdly, it was reiterated that the temporary copying and fair dealing exceptions to copyright must be interpreted narrowly, a point which may be of interest to the ongo-ing Hargreaves Review of Intellectual ...
This article explores the notion of 'integrity' under copyright law by analysing examples of 'int... more This article explores the notion of 'integrity' under copyright law by analysing examples of 'integrity-based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory -'aura', as put forward by Walter Benjamin, and 'trajectory', as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that 'power struggles' are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived;
... Luke McDonagh PhD Candidate, Queen Mary University of London ... Thirdly, it was reiterated t... more ... Luke McDonagh PhD Candidate, Queen Mary University of London ... Thirdly, it was reiterated that the temporary copying and fair dealing exceptions to copyright must be interpreted narrowly, a point which may be of interest to the ongo-ing Hargreaves Review of Intellectual ...
This article investigates the phenomenon of litigation undertaken by Patent Assertion Entities (P... more This article investigates the phenomenon of litigation undertaken by Patent Assertion Entities (PAEs), often referred to as 'patent trolls', within the legal system of the Patents Court (PHC) of England and Wales during the period 2000-2008. Our analysis shows that patent suits involving PAEs at the PHC are rare -they account for less than 6% of all patent cases. We suggest two reasons why the PHC does not provide a welcome venue for PAE litigation. Firstly, the majority of patent cases which reach a judgment in the UK result in a ruling invalidating the patent. Secondly, the costs regime in the legal system of England and Wales requires that the losing party pay the costs of the other side. In other words, even if its own costs are kept low, a PAE which loses a case may have to spend a substantial amount of money in order to cover the costs of the other side. When taken together, it is likely that these two aspects discourage litigation by PAEs at the PHC, which accounts for the low volume of cases when compared with other jurisdictions such as the US. We also offer interesting insights to the wider debate concerning whether it is likely that in the near future there will be a similar increase in PAE litigation in Europe as has already occurred in the US over the last decade. This article also discusses potential implications for the design of the proposed European Unified Patent Court. * Universidad Carlos III de Madrid and SERC LSE, [email protected], London School of Economics (LSE), [email protected], respectively. We gratefully acknowledge financial support from the UK Intellectual Property Office and the ZEW SEEK "Patent Litigation in Europe" project. The views expressed here are those of the authors. They are not necessarily those of the UK Intellectual Property Office. We are indebted to Max Ernicke for his generous advice and help. We benefitted from comments by participants of the 12 th annual Intellectual Property Scholars Conference at Stanford University and seminars at the UK Intellectual Property Office in August and
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