Case Law Research Articles

Consumer Confusion: The Sole Focus of Trademark Law

Abstract: In recent years, the expansion of the global marketplace, driven by the digital revolution, has led to a growing complexity in trademark disputes. The balance between protecting intellectual property and preventing consumer confusion has become increasingly delicate. Traditionally, trademark law was designed primarily to prevent consumer confusion and ensure fair competition. However, with the introduction of the dilution concept, this focus has shifted, resulting in expanded trademark rights that can inhibit innovation and free competition. This paper revisits the original intent of trademark law, advocating for a refocus on consumer confusion as the core principle. Through an examination of legislative intent, theoretical underpinnings, and case law, this paper demonstrates the need to reorient trademark protections to ensure they serve the broader goal of market fairness and economic development. This research highlights that excessive protection of trademark rights can lead to monopolistic practices, which ultimately harm both consumers and market competition. It contributes to the ongoing discussion about how to balance trademark rights with consumer protection, aiming to guide future legal reforms that foster both innovation and competition.

La crisi familiare e le giurisdizioni religiose negli Stati Uniti: tensioni tra separatismo e pluralismo nel sistema delle ADR

Familiar crisis and religious jurisdictions the United States: tensions between separatism and pluralism in the ADR system ABSTRACT: In the United States, religious denominations play a central role in the out-of-court resolution of disputes. In fact, religious groups provide negotiation facilitation, mediation and arbitration services, according to models of increasing procedural complexity and binding nature. The contribution will illustrate case law guidelines about law enforcement of Jewish and Islamic judgements in familiar matters. I will focus on attempts of secular courts to mediate between opposing demands: the security of legal statuses, the maintenance of social stability and public order, the protection of rights of the individual, the deflation of civil litigation, the greater confidence of litigants towards the minister of religion acting as judge. In the conclusion, I will evaluate the impact of these trends on the intercultural paradigm that characterizes the American pluralist legal system. SOMMARIO: 1. Le ADR religiose negli Stati Uniti tra luci e ombre - 2. Pactum suprema lex esto? Il riconoscimento dei lodi arbitrali emessi dai tribunal rabbinici in sede di divorzio - 3. Il diritto familiare musulmano tra ostracismo e neutralità - 4. E pluribus unum? Il molteplice e il singolo di fronte allegiurisdizioni religiose nella società americana

A right to live without stigma? Examining negative stereotyping, negative messages, and Article 8 of the European Convention on Human Rights

Abstract The purpose of this paper is to examine the contours of evolving jurisprudence on offensive expression and negative messages, and to suggest that it can best be understood by reference to the concept of stigma. At the European Court of Human Rights, there appears to have been an increasing willingness to recognise the harm of offensive expression through an interpretation of Article 8 of the European Convention on Human Rights, but the reach of this case law remains uncertain. In particular, while some cases associate negative expression with negative stereotyping, not all of these cases do, and there are potential conflicts with freedom of speech. In the domestic context, these issues recently arose in a significant case from the Court of Appeal, R (Crowter) v Secretary of State for Health and Social Care. In this case, the appellants argued that a legal provision sends a negative ‘message’, through the negative stereotyping of disabled people, but this ‘message’ is implicit, rather than explicitly articulated. While these developments raise important questions about the future evolution of case law, we propose that a focus on stigma can more clearly highlight the harms involved.

EVOLUTIVE INTERPRETATION WITH REFERENCE TO RECENT EUROPEAN COURT OF HUMAN RIGHTS CLIMATE CHANGE CASE LAW

Evolutive interpretation is one of the most important principles of interpretation that has enabled the Court to interpret the Convention in the light of present-day conditions, expanding the scope of protection under the Convention, and at the same time, raising the question of the permissible limits of interpretation. In the recent climate change case law, the Court has found a violation due to the failure of the respondent state to develop and implement a normative framework that would mitigate the consequences of climate change. The Court has applied evolutive interpretation considering that the Convention does not guarantee the right to a healthy environment or a similar right. The authors use the normative and casuistic methods to determine whether the Court’s recent climate change case law provides clearer parameters for the application of the evolutive interpretation. The research results indicate that judicial case law is not coherent with regard to these conditions, and consequently, the limits of the Convention’s evolutive potential remain unclear.

SPECIAL MEASURES FOR SEX OFFENDERS AND POTENTIAL HUMAN RIGHTS VIOLATIONS

Child sexual abuse has attracted enormous attention and occupied significant media space in recent decades. This increased attention has resulted in the creation of strategies aimed at responding to sexual abuse in general, and has been motivated by both the need to prevent reoffending and the desire to adequately respond to the expectations of the wider public. Measures aimed at responding to sexual offenses have become fertile ground for the introduction of various innovations. This may result in the violation of sex offenders’ human rights, and any state based on the rule of law should not allow this. This paper is devoted predominantly to the analysis of the Croatian and Serbian current legal frameworks related to the application of specific measures aimed at sex offenders to establish whether these frameworks are aligned with the relevant human rights protection standards. It has been established that the level of compliance of the two national legislations with the international legal framework is high although there is room for additional corrections. The objective of the paper is to give recommendations for harmonizing the above area with the modern legal acquis, and primarily with the standards established through the case law of the European Court of Human Rights.

Money laundering and the automobile industry: a comparative study between the laws of Mauritius and UK

Purpose Motor vehicles play a vital role in the economic and social growth of any country. However, they have recently become instruments and a source of illegally obtained financial gains for criminal bodies and individuals. This study aims to assess the laws of Mauritius on AML procedures to prevent money laundering through vehicles transactions. Design/methodology/approach To achieve the research objective, the black letter research method was used by analysing laws, regulations and case laws on the subject matter. A desk-based and doctrinal approach was also used by examining policy papers, scholarly articles and newspaper materials on the researched topic. Additionally, the research adopted a comparative analysis by assessing how the laws of another country address the issue of money laundering through vehicle transaction and the selected country is the UK. Findings The research concluded that Mauritius AML laws are lagging behind of the UK laws and accordingly, some measures were suggested to deal with the issue of money laundering through vehicles transactions. Accordingly, this research recommended that motor vehicle dealers who are high value dealers engaged in cash transactions above certain threshold, must also be categorised as reporting persons under the FIAMLA such that the prescribed AML measures apply to them. Additionally, it is convenient for the FCC to be embodied with some additional punitive and corrective powers to assist the Commission in its fight for the prevention and elimination of financial crimes in Mauritius. Originality/value At present, this study will be among the first academic writings on the intersection between money laundering and the automobile industry and on the effectiveness of the legal and regulatory measures undertaken by the Mauritian authorities to prevent money laundering through vehicles transactions. The study is carried out with the aim of combining a large amount of empirical, theoretical and factual information that can be of use to various stakeholders and not only to academics.

A Fortiori Case-Based Reasoning: From Theory to Data

The widespread application of uninterpretable machine learning systems for sensitive purposes has spurred research into elucidating the decision-making process of these systems. These efforts have their background in many different disciplines, one of which is the field of AI & law. In particular, recent works have observed that machine learning training data can be interpreted as legal cases. Under this interpretation, the formalism developed to study case law, called the theory of precedential constraint, can be used to analyze the way in which machine learning systems draw on training data—or should draw on them—to make decisions. In the present work, we advance the theory underlying these explanation methods, by relating it to order theory and logic. This allows us to write a software implementation of the theory that can be used to compute with the definitions and give automatic proofs of the properties of the model. We use this implementation to evaluate the model on a series of datasets. Through this analysis, we characterize the types of datasets that are more, or less, suitable to be described by the theory.

Application of BOPPPS Collaborative Case Teaching Method in Construction Law Classroom Instruction

This study focuses on students majoring in Engineering Management and explores the teaching model of the BOPPPS Collaborative Case Teaching Method in the Construction Law course. The research involves reforming the teaching model, introducing construction law cases, utilizing online platforms, and improving evaluation methods. The aim is to “activate” the classroom, shifting from traditional teaching to guided learning, achieving a synchronous resonance between teaching and learning. This approach intends to provide students with the time and space to enhance their ability to explore new knowledge and analyze and solve problems. It also seeks to improve students’ awareness of engineering and law, cultivate their innovative abilities, and contribute positively to enhancing the quality of talent cultivation in higher education institutions.

Bullying in Schools: Persistent Legal Challenges

In 2019, about 22% of students ages 12–18 reported being bullied, with a higher percentage of female students than male students reporting victimization. Recent empirical reports indicate that students with disabilities are more likely to experience bullying and be punished for bullying. Bullying has been linked to increased risk for experiencing short- and long-term consequences for victims and perpetrators, and it may result in violations of civil rights acts. Unfortunately, despite federal civil rights acts, federal guidance issued through Dear Colleague Letters, and case law, schools still engage in practices that amount to violations of students’ civil rights and make them subject to liability. In this brief, we highlight two recent court cases involving bullying in order to illustrate persistent school failures in addressing these important concerns. Implications for practice are also considered.

Witness Preparation at the International Criminal Court

Abstract The case law on witness preparation at the International Criminal Court (ICC) does not provide a coherent answer to whether it is admissible. Similarly, scholars have examined this practice from different perspectives, but they have not come to a consensus, and no academic study focuses on the link between witness preparation and witnesses’ well-being. This article analyses ICC case law on this issue and identifies three different approaches to witness preparation. It suggests that witness preparation corresponds to a legal obligation under Article 68 of the Rome Statute to protect witnesses’ well-being. Additionally, Article 68 imposes an obligation to ensure witnesses are adequately prepared upon the entire ICC and not only its judges. This article recommends that the ICC should hold a broad consultation on witness preparation with different actors. Finally, given that the practice has the potential to be abused, this article provides some suggestions on how to balance witness preparation with the right to a fair trial and witnesses’ rights.

Data retention in the light of copyright infringements: Protecting the status quo or seeking a third way? (Case C-470/21 La Quadrature du Net II)

In La Quadrature du Net II, the EU Court of Justice addressed – once again – the issue of the application of national retention legislation providing for the generalized retention of telecommunications data. This time, unlike in the previous cases, the problem was examined not in relation to measures used in the areas of combating serious crime or pursuing national security objectives, but in relation to counteracting online copyright infringements. Hence the case, decided by the CJEU sitting as the Full Court, concerned an important and topical issue, namely the possibility of countering mass copyright infringements in a situation where, according to a strict reading of the previous case law, the permissibility of imposing an obligation on telecommunications operators to collect information on users’ IP addresses was questioned. The LQDN II judgment – commented on by some as diverging from previous case law – is an important and necessary complement to the Court's earlier interpretation and, at the same time, a guideline on how to design retention laws to be applied not only in the area of countering copyright infringements, but also in other important areas, such as the fight against hate speech.

Extending Statutory Protection to Action Short of Dismissal for Participating in Industrial Action: The Supreme Court on the Right to Strike in Secretary of State for Business and Trade v Mercer

ABSTRACT The Supreme Court in Mercer v Secretary of State for Business and Trade found there was a violation of the right to strike, under article 11 ECHR, when there is no legal protection against detriment short of dismissal for taking part in industrial action. Section 146 Trade Union Labour Relations Consolidation Act (‘TULRCA’) 1992, as currently construed, does not cover this situation. While the Supreme Court agreed with the Court of Appeal that it would not be appropriate to use section 3 Human Rights Act (‘HRA’) 1998 to re-interpret section 146 TULRCA in a Convention-compliant way; unlike the Court of Appeal, the Supreme Court issued a rare declaration of incompatibility under section 4 HRA. It is suggested in this note that Mercer is significant for two main reasons. First and foremost, Mercer is significant for the Supreme Court’s recognition of, and finding of, a violation of, the right to strike. Second, Mercer contributes to the wider debate about the interplay between sections 3 and 4 HRA. The final part of the note reflects on the Supreme Court’s interpretation of Strasbourg case law whereby the Court in Mercer found article 11 ECHR requires stricter protection in this respect for public authority workers.

Refinement of Hy's Law using the Drug-Induced Liver Injury Network Database.

Hyman Zimmerman observed that hepatocellular (HC) drug-induced liver injury (DILI) with jaundice had a mortality rate of ≥10% (Hy's Law). Hy's Law does not specify the timing of liver tests nor the definition of HC DILI versus cholestatic or mixed (C/M) DILI. We aimed to assess the validity of Hy's Law in the prospective Drug-Induced Liver Injury Network (DILIN) cohort. Drugs with ≥10 confirmed DILI cases with jaundice were analyzed. Four permutations of Hy's Law were applied: R≥ 5 using initial (1) or peak (2) ALT, AST and Alk P levels, and the FDA associated criteria of ALT or AST ≥ 3x ULN with Alk P ≤ 2x ULN using initial (3) or peak values (4). Mortality was death or liver transplant adjudicated to be due to DILI. Using initial R values, mortality was 11.1% for HC vs 2.0% for C/M (p<0.001); using peak R values, mortality was 10.3% vs 1.6% (p<0.001). Using FDA associated definition, mortality was 7.9% vs 3.9% (p=0.04) using initial values and 7.9% vs 3.0% (p=0.01) using peak values. Using initial R values, drugs that frequently caused HC injury generally had mortality rates ≥ 10%; while drugs that typically caused C/M injury all had rates <10%. Occasional agents that caused HC injury with jaundice were associated with low mortality. Initial R values were the most reliable means of identifying Hy's Law cases. There were some drugs that caused HC injury with jaundice but with mortality rates <10%. Refinement of Hy's Law is warranted.

Singapore: Insights from Hong Kong Case Law on Locating the Source of Business Profits

This article reviews landmark cases from Hong Kong concerned with locating the source of business profits. It extracts guiding principles from these cases and evaluates their relevance in interpreting statutory provisions that define the scope of income taxation in Singapore, and for resolving issues relating to whether business profits are sourced in Singapore.

Access to justice for atrocities in the comparison of land-mark cases on state immunity in Brazil and Italy

ABSTRACT This article investigates differences and similarities in the approach of Italian and Brazilian domestic courts to the topic of access to justice for atrocities and the role of state immunity, taking particular note of the limited and select dialogue between the two judiciaries and reflecting on the potential for further developments of the customary international law rule on state immunity. To do so, the article first outlines the rule on state immunity and offers an overview of the articulated Italian case law on why state immunity cannot bar access to justice for atrocities, considering the judicial developments occurred after 2004. The paper moves on to describe the recent 2021 decision of the Brazilian Supremo Tribunal Federal, in which the Brazil judiciary seemingly joined the Italian trend against state immunity when atrocities are committed. The two different judicial trends are then compared and analysed, with a discussion on the limited explicit reference to Italian decisions by the Supremo Tribunal Federal. The article concludes the research by describing the likely impact of these judicial trends on future developments on the relationship between access to justice for atrocities and state immunity.

No need to look, trust me! Mutual trust and distrust in the European arrest warrant system

Abstract No cooperative scheme in EU law has displayed bigger tensions between mutual trust and fundamental rights protection than the EAW system. Despite the requirement developed by the CJEU for national courts to trust each other and recognise each other’s arrest warrants, the reality on the ground has shown high levels of distrust between national courts regarding Member States’ alignment with core EU values. In this contribution, we analyze how the CJEU has managed such tensions in the EAW system. To that effect, we first put the Court’s EAW case law into context by examining the broader language of mutual trust used by the Court in other fields of EU law. In doing so, we point out how the Court has espoused different levels of lawful distrust to be exercised in different circumstances under the scope of application of mutual trust. Given that broader context, it is contradictory for the Court to mainly view mutual trust as a requirement rather than a reality in need of permanent and continuing justification between national authorities. The latter conception of mutual trust is more apt to be the basis of EU horizontal cooperation, which must be value-based and sincere according to the Treaties. Therefore, we propose a bidimensional account of mutual trust as a legal principle, one that accommodates both trust and distrust as tools for managing the uncertainty and dynamic nature of trust-based cooperation. Finally, we explore how such account of mutual (dis)trust can be concretised by the Court and other political institutions.

Procedural fairness in automated asylum procedures: Fundamental rights for fundamental challenges

In response to the increasing digitalization of asylum procedures, this paper examines the legal challenges surrounding the use of automated tools in refugee status determination (RSD). Focusing on the European Union (EU) context, where interoperable databases and advanced technologies are employed to streamline asylum processes, the paper asks how EU fundamental rights can address the challenges that automation raises. Through a comprehensive analysis of EU law and several real-life cases, the paper focuses on the relationship between procedural fairness and the use of automated tools to provide evidence in RSD. The paper illustrates what standards apply to automated systems based on a legal doctrinal analysis of EU primary and secondary law and emerging case law from national courts and the CJEU. The article contends that the rights to privacy and data protection enhance procedural fairness in asylum procedures and shows how they can be leveraged for increased protection of asylum seekers and refugees. Moreover, the paper also claims that asylum authorities carry a new pivotal responsibility as the medium between the technologies, asylum seekers and their rights.

"We Move": How Florida School Librarians are Protecting Controversial Titles and Navigating a Legally Perilous Environment

Using a mixed method approach and informed by Noelle-Neumann’s Spiral of Silence Theory, this study examines the impact on school librarians of recent legislation in Florida that has facilitated widespread materials challenges and removals of titles in public school libraries across the state. Participants were presented with several series of questions that included their comfortability with collecting materials that could potentially be considered controversial, and their perceptions of support for their collection development decisions by stakeholders including principals, parents, colleagues, and their community. Additional series of questions focused on the participants’ experience with self-censorship and their familiarity with both Florida State law and federal case law that pertains to students’ First Amendment and intellectual freedom rights. Multiple, successive rounds of recruitment yielded 49 survey participants and 9 interviewees. Preliminary analysis suggests that Florida school librarians increasingly rely on professional reviews to both guide their selection choices as well as protect themselves in the event of a materials challenge. Additionally, although a large majority of the respondents indicated strong support for intellectual freedom, many avoid selecting materials perceived as controversial to avoid controversy. However, the data also suggest that communication, collaboration, and involvement with like-minded individuals and organizations can be key mitigators of self-censorship and appear to offer a fruitful avenue to assist Florida school librarians in navigating the current environment. Finally, Florida school librarians appear to have a more robust awareness and deeper understanding of state laws compared to the federal case law that provides critical context.

The role of administrative courts in ensuring legal security for marriage and family: comments in the context of article 18 of the Constitution of the Republic of Poland

The article is devoted to the role of administrative courts in ensuring the legal security of an individual in the area of family law. The aim of the analysis is to demonstrate the guarantee of the preservation by the Polish constitutional legislator of the traditional form of marriage as a union of a woman and a man and the family created on this basis (Article 18 of the Constitution of the Republic of Poland). The article discusses the essence of legal security and the role of administrative courts in ensuring it, as well as the guarantee nature of the regulations of Article 18 of the Constitution of the Republic of Poland. Against this outlined background, the thesis on the inadmissibility of institutionalization of same-sex unions is argued. Problems resulting from the judicial practice of administrative courts related to the transcription of a child's birth certificate are also discussed. The scientific research was conducted by using traditional methods of jurisprudence, primarily the formal-dogmatic method. The linguistic, systemic and teleological interpretation of Article 18 of the Constitution of the Republic of Poland was applied. The directions of operational interpretation resulting from the case law of administrative courts were discussed. The views found in the literature on the subject (doctrinal interpretation) were taken into account, too. According to the author, the perspective of legal security strengthens the arguments stemming from the linguistic and historical interpretation of Article 18 of the Constitution and allows for a better justification of the inadmissibility of institutionalizing same-sex unions by means of a statute. Such a procedure seems particularly useful in the face of the growing tendencies in the law of other countries to eliminate the traditional form of marriage as a union of a woman and a man.

Is It Just Dumb Luck? The Challenge of Getting Access to Public Records Related to Smart City Technology

Many state and local governments have begun to rely heavily on Smart City technologies, including license plate readers, gun-shot detection equipment, wastewater monitoring tools, and more. But the public often has little oversight with regard to their purchase, installation, and use. We analyze public records laws and relevant case law to examine whether the laws provide access to records about, and produced by, Smart City technologies. Even in states that broadly define “public record,” officials regularly rely on exemptions—often citing law enforcement or privacy concerns—to deny access. Further, many Smart City technologies have not been addressed by the legislatures and courts, but legislation and litigation involving two technologies (police body-worn cameras and police dash cameras) have advanced—offering some optimism.