Contributory liability is the liability of a party who is not the direct infringer, but who facilitates or contributes to the infringement committed by the direct infringer. With respect to trade marks, neither EU law nor national laws of member states (MS) provide specific rules to deal with the issue except very limited circumstances. Thus, the question of contributory trade mark liability is assessed under tort law rules. In that regard, the law seems straightforward. Yet, it is not. This is because, contributory liability now mainly arises in a new context: the Internet. Except from the cases of where the occurrence of a direct infringement of trade mark is questionable eg selling and buying keywords, Internet intermediaries' liability arise as contributory liability since they are the vehicles to facilitate transactions between third parties on the Internet. Here, it should be underlined that the thesis' scope is limited to the cases where it is unquestionable that the direct trade mark infringement has taken place, so the intermediaries' contributory liability is an issue. More precisely the cases dealing with selling of counterfeit goods. In those circumstances, trade mark owners have been seeking to fix the liability of an intermediary rather than the direct infringers themselves since reaching the latter is not always possible as they can easily remain anonymous or be located in jurisdictions which are not easily accessible for right holders. This is why, intermediaries have been the subject of contributory liability cases. As such, how should their liability be examined given that their involvement does not go beyond providing a necessary platform and infrastructure? How can their involvement be assessed as the Internet's infrastructure differs from that of the offline world? For these questions that arise from contributory trade mark liability, there are two legal instruments applicable within the EU: 1) tort laws of the MSs, and 2) pan-EU immunity regime established by the E-Commerce Directive 2000/31. The first is also applicable to the offline world while the latter provides a more Internet-specific approach as it establishes horizontally applicable safe harbour rules for certain activities of intermediaries. According to the Directive, intermediaries which provide mere conduit, caching and hosting services can be granted immunity from the liability arising from its users' infringements provided that the conditions stated under each Article are qualified. However, the immunity is provided as an additional protection meaning that not qualifying for immunity does not automatically result in the liability of an intermediary. Thus, whether an intermediary is liable or not is ultimately a subject of tort law of the MSs which is not harmonised within the EU. Thus, the law of contributory trade mark liability in the EU appears to be incoherent. On the one hand, the immunity rules govern when an intermediary would be granted immunity from liability and apply horizontally. On the other hand, tort law rules deal with the question of contributory liability but differ from one MS to another. Therefore, an analysis on existing law appears necessary in order to build the legal framework more systematically by demonstrating how it is applied. Yet, this analysis shall be undertaken to answer whether the current regime proves to be satisfactory in dealing with ongoing and emerging issues that the Internet brings and finally what the remedy would be for the issues where the law falls short in dealing them. These are the questions that have been neglected by the EU legislators. This thesis therefore undertakes this examination in the pursuit of answers to these questions and ultimately the remedy.

No description available.

The question of whether IP incentivizes innovation is a long debated one in the literature on economics of innovation and technological change. The first chapter explores this fundamental question in an emerging market context, applying a 'private returns to R&D framework' to the Indian bio-pharmaceutical industry. In a fundamental policy shift, India agreed to introduce product patents for pharmaceuticals when it signed the WTO TRIPS treaty in 19951.1 This policy came into effect through enabling legislation in 2000 and final implementation in 2005. Using this policy shift as the setting for a natural experiment, the paper estimates its impact by using data on a panel of 315 Indian pharmaceutical firms drawn from the years 1990 to 2005. Private returns of a firm are measured using a hedonic stock market valuation of the tangible total assets (A) and intangible inventive assets (K). The findings indicate an economic and statistically significant increase in private returns to inventive activity. However, this effect appears to he highly concentrated in the most technologically progressive Indian firms. Subsequent investigations through firm-level field case studies, patent data analysis and discussions with industry experts reveal that IP apart, economic liberalization in India since 1991 and the Hatch-Waxman Act in the United States have had accompanying effects in guiding the evolution of the industry. / During the period of our analysis, a substantial number of Indian bio-pharmaceutical firms became export intensive, with enhanced access to Western markets. This came about aided by a rationalized currency regime through an economic reforms process in India. The 2nd chapter explores how export destinations and firm capabilities influence the extent of learning by exporting (LBE) in Indian pharmaceutical firms that exported to a variety of both advanced and emerging destinations between 1994 and 2007. Departing from previous studies the paper explores if exports result in other gain besides improvements in technical efficiency. We find that LBE is not restricted to technical efficiency gains alone but also reduces costs of production. Furthermore, exporters also gain access to other types of knowledge that improves R&D efficiency and the rate of new product introductions. Interestingly these gains are more especially when firms export to high income destinations (as evidenced from higher gains when firms export to US rather than non-US destinations). Finally, results also indicate that the gains are higher for more capable firms. / The third chapter connects the rise of the Indian bio-pharmaceutical producers to the global value chain in the pharmaceutical industry. Specifically, it explores the welfare effects of early generic entry in the United States during the period 1997 and 2008. This is the period during which, with increasing frequency, generic drug manufacturers in the United States (many from Israeli, India, North America, or European Union) have been able to challenge the monopoly status of patent-protected drugs even before the patents expire. The legal foundation for these challenges is found in Paragraph IV of the Hatch-Waxman Act. If successful, these Paragraph IV challenges generally lead to large market share losses for incumbents and sharp declines in average market prices. The 3rd chapter estimates, for the first time, the welfare effects of accelerated generic entry via these challenges. Using aggregate brand level sales data between 1997 and 2008 for hypertension drugs in the U.S. we estimate demand using a nested logit model in order to back out cumulated consumer surplus, which we find to be approximately $270 billion. We then undertake a counterfactual analysis, removing the stream of Paragraph IV facilitated generic products, finding a corresponding cumulated consumer surplus of $177 billion. This implies that gains flowing to consumers as a result of this regulator mechanism amount to around $92 billion or about $130 per consumer in this market. These gains come at the expense to producers who lose, approximately, $14 billion. This suggests that net short-term social gains stands at around $78 billion. We also demonstrate significant cross-molecular substitution within the market and discuss the possible appropriation of consumer rents by the insurance industry. The findings from the 3rd chapter have implications related to innovation policy as it pertains to pharmaceutical markets around the world. (Abstract shortened by UMI.) / 1World trade Organization's Trade Related Intellectual Property Agreement.

There is a problem with determining rights to research data created or compiled in science research labs at Canadian universities. Unlike many copyright and patent issues that arise on university campuses, the law is unsettled with respect to rights to research data. This is primarily due to two factors: the uncertain legal status as to facts, which would include research data, and the differences in norms and academic traditions that exist. Some universities have implemented polices in an attempt to resolve the issue. However, the policy response has been confusing and inadequate. This thesis considers a new theoretical approach to the problem. The Coase Theorem is analyzed to determine what lessons can be applied to a university environment. The conclusion is that from the three main parties who would normally have claims to rights in research data – a professor, graduate student(s), or the university itself, the default rule should be to assign the initial ownership rights to the professor with a right of use to the graduate student(s), for research and publication required as part of her degree/program. The acquisition of additional rights would be the subject of negotiations between the parties.

There is a problem with determining rights to research data created or compiled in science research labs at Canadian universities. Unlike many copyright and patent issues that arise on university campuses, the law is unsettled with respect to rights to research data. This is primarily due to two factors: the uncertain legal status as to facts, which would include research data, and the differences in norms and academic traditions that exist. Some universities have implemented polices in an attempt to resolve the issue. However, the policy response has been confusing and inadequate. This thesis considers a new theoretical approach to the problem. The Coase Theorem is analyzed to determine what lessons can be applied to a university environment. The conclusion is that from the three main parties who would normally have claims to rights in research data – a professor, graduate student(s), or the university itself, the default rule should be to assign the initial ownership rights to the professor with a right of use to the graduate student(s), for research and publication required as part of her degree/program. The acquisition of additional rights would be the subject of negotiations between the parties.

During September 2010, Google decided to change their trade mark policy to allow keywords which is equal to an already own trademark to be offered to all who intend to link the word to their ad. They offered a service for this called Adwords. The update followed since The Court Of Justice (CoJ) stated that Google does not commit trade mark infringement by doing this. The question to answer is whether the proprietors of trademarks can do something to stop them from being used by competitors as keywords in Adwords. CoJ has stated that the advertisers are infringing the exclusive right of a trademark if the used keyword is identical to the trademark, the commercial focuses on products that is identical to the products which are registered on the trademark and if the commercial makes it difficult or impossible to an average internet user to decide whether the products originate from the proprietor, a company which has a financial connection to the proprietor or a third party. If an advertiser limits the ad to contain commercial which focuses on their specific business and products it is most likely not possible for the proprietor to claim trade mark infringement. The opportunities to stop the advertising is found in the Swedish Marketing Act . This section of law prohibit so-called abuse of reputes and misleading marketing. In the case Blocket vs Metro it is tested whether Metro had conducted Abuse of Blockets repute by using the trademarked term "blocket". The Swedish Market Court (MD) stated without justification that some abuse of repute did not exist. The trade mark has, because of the policy change, reduced its value since the opportunities to protect a trade mark are still around but now the process is less efficient and more expensive. This however can be changed as soon as the possibility of “misleading advertising” is tested by the MD.

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Thesis (Ph. D.)--University of Hawaii at Manoa, 2004. / Includes bibliographical references (leaves 128-129).

Debates over intellectual property's justifications tend to treat natural rights and utilitarian accounts as competitors, but they should be seen as complements instead. Lockean and Kantian theories of intellectual property highlight the strong interests that intellectual property creators have in profiting from and exercising some degree of control over their work, but neither theory gives sufficient justification for the full assortment of rights that intellectual property owners have under current law. Utilitarian accounts provide an essential supplement to these natural rights theories by focusing on society's interests in the production of useful information and creative expression, but that does not mean intellectual property law should single-mindedly strive only to maximize social welfare. Developing both natural rights-based and utilitarian justifications, this dissertation advances a pluralist account of intellectual property that understands different features of copyright, patent, and trademark law to be serving different normative interests. / Philosophy

The present study deals with the prerogatives associated with work distribution in copyright law. The first part is devoted to the droit de destination and the exhaustion doctrine. We will illustrate each one with legislative and jurisprudential examples. While these theories are often regarded as opposite, they in fact are dissimilar juridical solutions. The exhaustion doctrine derives from an economic conception of copyright law whereas the droit de destination originates from natural law focussed on the interests of the author. The second part is concerned with the fact that a coherent theory on work distribution in Canadian copyright law has yet to be established. It will be shown how the legislator and the jurisprudence have developed means to assure that, after the first distribution of the work, the copyright holder is still in the position to control some of its use. Finally, I will proceed to analyse the regime that deals specifically with parallel imports allowing the copyright holder to supervise imported works.