Trade law Part 28 in the United States

287
Substantial Evidence in the Law of International Trade: Meaningful Judicial Review of Antidumping Actions or Perpetuation of the Yo-Yo Effect?
Bryan A. Edens
Cardozo Public Law, Policy & Ethics Journal
Volume 6, Number 2, Spring 2008    p.431 LAW JOURNAL / LAW REVIEW

288
Heating Up International Trade Law: Challenges and Opportunities Posed by Efforts to Combat Climate Change
Richard G. Tarasofsky
Carbon & Climate Law Review
2008, Number 1    p.7 LAW JOURNAL / LAW REVIEW

289
Trade Mark Coexistence Agreements: What is all the (lack of) fuss about?
Matthew J Elsmore
SCRIPTed: a Journal of Law, Technology & Society
Volume 5, Issue 1, 2008    p.7-30 LAW JOURNAL / LAW REVIEW
Traditionally, it is understood that trade mark law tackles the prospect of damage resulting from the use of confusingly similar trade marks. The aim is broadly to ensure commercial origin is differentiated and proprietary rights secured. A lot is written on this in Europe. In contrast, very little time and space is allocated to trade mark coexistence agreements. Despite a shortage of authoritative rulings, it is not immediately clear why, especially as they may be having a profound impact on the use of product markers. Coexistence agreements commonly exist between parties with at least similar trade marks who decide to formally coexist, often in the wake of legal skirmishes. In the busy European market, where Community-wide protection is available, an up-front contract may be an attractive way to avoid trade mark conflict. When these contracts work, trade mark law is effectively pre-empted as the underlying agreement, possibly remote of genuine trade mark concerns, is the real governing law. Among other things, this affects the ability of competitors to acquire rights and the quality of information available to consumers. A better understanding of these agreements is essential therefore, not least because on the limited occasions they come before trade mark bodies, the juridical response is inconsistent, though a theme that emerges is of a dismissive and unconvincing attitude. The reasons why are rarely elaborated and while this may simply reflect an awkward interplay between contracts and trade marks, the article deepens the discussion. Starting from concepts and commercial realities, the analysis proceeds to case law and underlying legal and economic rationale to determine whether the lack of fuss is justified.

290
Border Tax Adjustments and Emissions Trading: The Implications of International Trade Law for Policy Design
Matthew Genasci
Carbon & Climate Law Review
2008, Number 1    p.33 LAW JOURNAL / LAW REVIEW

291
The Black Label: Trade Mark Dilution, Culture Jamming and the No Logo Movement
Matthew Rimmer
SCRIPTed: a Journal of Law, Technology & Society
Volume 5, Issue 1, 2008    p.70-138 LAW JOURNAL / LAW REVIEW
This article considers the ongoing debate over the appropriation of well-known and famous trade marks by the No Logo Movement for the purposes of political and social critique. It focuses upon one sensational piece of litigation in South Africa, Laugh It Off Promotions v. South African Breweries International. In this case, a group called Laugh It Off Promotions subjected the trade marks of the manufacturers of Carling Beer were subjected to parody, social satire, and culture jamming. The beer slogan “Black Label” was turned into a T-Shirt entitled “Black Labour/ White Guilt”. In the ensuing litigation, the High Court of South Africa and the Supreme Court of Appeal were of the opinion that the appropriation of the mark was a case of hate speech. However, the Constitutional Court of South Africa disagreed, finding that the parodies of a well-known, famous trade mark did not constitute trade mark dilution. Moseneke J observed that there was a lack of evidence of economic or material harm; and Sachs J held that there is a need to provide latitude for parody, laughter, and freedom of expression. The decision of the Constitutional Court of South Africa provides some important insights into the nature of trade mark dilution, the role of parody and satire, and the relevance of constitutional protections of freedom of speech and freedom of expression. Arguably, the ruling will be of help in the reformation of trade mark dilution law in other jurisdictions – such as the United States. The decision in Laugh It Off Promotions v. South African Breweries International demonstrates that trade mark law should not be immune from careful constitutional scrutiny.

292
Competition v intellectual property: Uneasy allies or natural adversaries?
Mitchell Landrigan
Trade Practices Law Journal
Volume 16, Number 2, June 2008    p.116 LAW JOURNAL / LAW REVIEW
The purpose of this article is to examine the relationship between competition and intellectual property (IP) in an Australian context. First, the background to competition policy and IP law reforms in Australia is briefly described. Then the different forms and nature of IP rights (as compared with real property rights) is examined, and possible tensions between the goals of IP laws and competition policy are considered. This is followed by an examination of some High Court cases dealing with rights or IP rights (and one United States Supreme Court case), as well as arguments and counterarguments about whether IP rights should be presumed to give rise to a finding of substantial market power. In the last section of the article, some of the findings of the Intellectual Property Competition Review Committee are considered and the treatment of IP rights in the two primary access regimes in Australia’s competition law legislation, the national access regime and the telecommunications specific access regime are looked at, as well as s 51(3) of the Trade Practices Act 1974 (Cth).