Sole Law Research Articles

Are EUIPO Trade Mark Examiners and the Boards of Appeal Bound by Precedent Decisions?

Abstract Are EUIPO examiners and appeal bodies bound by previous decisions of the office they belong to? Before the decision in Puma was issued, there was a succession of frequently referred to ECJ precedents which were apparently disregarded. EUIPO offices had been considered bound to the sole law (and, where precedents are concerned, only to ECJ case-law). However, after Puma, pursuant to the administrative duty to act consistently and to state the grounds on which decisions are based, it is concluded that relevance of EUIPO precedents (and of the ‘Trade mark guidelines’, as far as they are based on them) should not be set aside simply because they are not formal sources of law. Instead, they should be appreciated as rules of administrative procedure. In this sense, precedent EUIPO decisions should be recognised as more than just a persuasive power (which they share with all other relevant ‘precedents’ such as Member States case-law or offices’ decisions). In fact, it should be acknowledged that they also have a role within the duty of motivation of administrative decisions. So if EUIPO decides to depart from a precedent or from its ‘Trade mark guidelines’, explicit and detailed motivation of such departure is required. Even if the EUIPO is under a general duty to take into account the decisions already taken in respect of similar applications, a specific duty to take into consideration a given precedent requires that such precedents are duly reported with all relevant elements to be taken into consideration (factual context and legal reasoning) within the decision to be issued.

Deleuze et Guattari,Kafka, pour une littérature mineure. Kafka au carrefour du désir et de la Loi

In their book Kafka – Towards a Minor Literature (1975), Gilles Deleuze and Felix Guattari propose a new interpretation of Kafka. Instead of being the writer of the absent transcendence, of Law and guilt, Kafka is considered as the writer of desire. The Trial especially is read as the story of a man running after his desire, going from a room to another in a horizontal and immanent space, ignoring the vertical axis of transcendent Law. In this article, Rony Klein points out that this reading is following in fact the Apostle Paul’s dialectics of sin (desire) and Law, as developed in his Epistle to the Romans. Though Deleuze and Guattari negate the theological presuppositions of the Apostle, they nevertheless use the same categories of desire and Law. Whereas the Apostle seeks to suppress the dialectics of sin (desire) and Law by Love of Christ, Deleuze and Guattari separate Law from desire in order to suppress Law “from below”, leaving man to the sole law of desire. Their secular thought is thus governed by the same Law as that of Saint Paul, even if he unites desire and Law whereas they separate them. In the Jewish biblical tradition, they could have find a solution where Law does not oppress desire, but encourages it, as in the case of God’s commandment to Adam to eat from all of the trees in the Garden, except one tree, the Tree of Knowledge.

State Contracts: The True and Unparallelled Reaches of Their Binding Force

State contracts, being contractual arrangements between States and foreign entities, have evolved into the most potent safeguard instrument for the foreign entities' interests available - both in public and private international law. The State contract, if properly drafted, becomes the sole law of the parties and even withstands the State's other international obligations (including, those under the EU law), in the latter case obliging the State to indemnify the foreign entity. It is, consequently, important for the persons representing or assisting States, their Governments or authorities in negotiating, drafting-up and implementing these contracts to be aware of the true status of the present law. While virtually all scholarly work is devoted to the protection of the foreign entities' interest, the Article aims to be neutral and explores what clauses - explicit or implicit - trigger the mentioned consequences. The States are advised, accordingly, to be cautious of what clauses they include in their contractual dealings.