Packaging

'The Legitimacy of Plain Packaging Under International Intellectual Property Law: Why There is No Right to Use a Trademark Under Either the Paris Convention or the Trips Agreement', a cogent paper  by Mark Davison,  notes that

The Australian government has passed legislation for ‘plain packaging’ of tobacco products. The legislation will prohibit the use of logos, graphics and colour schemes on tobacco products. It will dictate the manner in which word trademarks are used and the colour of the packaging will be a drab brown. This chapter considers the arguments that there is a right to use trademarks under the Paris Convention or the TRIPS Agreement. In doing so, it also engages in a detailed analysis of Article 20 of TRIPS. It explains why no right of use exists under either Paris or TRIPS and the very limited role that Article 20 of TRIPS has in the context of the debate surrounding the legislation.

Davison concludes that -

1. There is no express or implied right to use a trademark under the Paris Convention or the TRIPS Agreement.

2. Defining such a right is effectively impossible. So too would be the definition of the exceptions to such a right.

3. The absence of a right of use under TRIPS Article 20 has implications for the meaning of 'encumbered by special requirements' within Article 20. A partial or total prohibition on use would not come within Article 20.

4. Such an interpretation of Article 20 is not only consistent with the wording of Article 20 but is also consistent with and supports the entire trademark regime under the Paris Convention and the TRIPS Agreement. It also validates those civil law systems that do not protect unregistered trademarks.

5. Only 'the use of a trademark in the course of trade' is relevant to Article 20 for the purposes of assessing the legality of an encumbrance by special requirements. The major encumbrance by special requirements on tobacco trademarks imposed by the legislation is outside the course of trade. The encumbrance by special requirements in the course of trade is limited to some special requirements for word trademarks.

6. The only issues that plain packaging of cigarettes raises under the TRIPS Agreement are therefore the limited encumbrances imposed on word trademarks in the course of trade and their justification for the purposes of Article 20 pursuant to Article 8 or on other grounds.

The work is available as a chapter in Public Health and Plain Packaging of Cigarettes: Legal Issues (Edward Elgar, 2012) edited by Mitchell, Voon & Liberman.

Misrecognised

'The Misrecognised as the Least Advantaged Citizens in Plural Democracies' by Mark Blythe in 5(2) Canadian Political Science Review (2011) comments that

John Rawls’s “Justice as Fairness” is the most systematic attempt in recent decades to provide a liberal grounding for justice in plural democratic societies. Rawls argued that social and economic inequalities are justifiable only if they are to the advantage of society’s least-advantaged members. Rawls argued that the least-advantaged position in society was occupied by the citizen with the lowest expectation for primary social goods (all-purpose means like income and opportunity). This paper argues that the least-advantaged citizens, in part, are those whose identities are misrecognised. Misrecognition of identity can cause harm; it can restrict the agency and opportunity of the misrecognised. Minority identity groups (whose identities are often misrecognised) do not do as well as others citizens in social, economic and political terms. This paper argues that the misrecognition of identity constitutes unreasonable democratic practice because it can harm members of minority identity groups.

Wills and Indigenous People

The concise 'Making Wills for Aboriginal People in NSW' by Prue Vines in 49(8) Law Society Journal of NSW (2011) argues that

Aboriginal people in NSW have even more need to make wills than non-Aboriginal people. A burgeoning middle class continues to have traditional family and customary law obligations, while taking on mainstream property and obligations. The standard intestacy regime is inappropriate including because it uses an inappropriate idea of family and the high rate of burial disputes involving Aboriginal people means the role of executor is even more important than usual. A will can also be used to protect certain aspects of customary law. The article considers the issues arising in drafting the most culturally appropriate and effective wills.

Vines notes that

Aboriginal people, even those who live in cities and live urban lives, often continue to have customary law obligations which may need to be protected. Intestacy cannot deal adequately with all customary law obligations, possibly even where Part 4 of the Succession Act 2006 (NSW) is used. Many of these will be obligations arising out of kinship, which we have already discussed. But there may be other customary law obligations which might be protected by wills, in particular secret knowledge which should be passed on. Normally this should happen inter vivos, but if it does not happen in life, a will might be drafted to operate as a vehicle in equity which will both protect and keep secret the knowledge itself. This might be done by using equitable doctrines including confidentiality and secret and half‐secret trusts. The question of whether such knowledge can be regarded as property may be answered by the argument that equity retains flexibility so that it can accommodate a wider view of property than pertains at common law. 

Aboriginal artwork is often a significant issue for wills to deal with, and the issue may go further than it would for a non‐Aboriginal person’s artwork. For example, a person may have done an artwork which is based on ritual knowledge. The artwork itself may be copyright and therefore be an item of property which the common law recognises and which can be passed on to other people. That raises no great difficulty, except that the fact that it is based on ritual knowledge may mean that it is important to place conditions on the gift in the will. There may be some question of how the artist was supposed to use this knowledge. If the ritual knowledge is something which the artist is supposed to pass on then a will may be helpful. The ritual knowledge itself cannot be passed on as copyright because copyright protects the expression of an idea rather than the idea itself. It may be possible to do this by means of a secret or half‐secret trust or by using some aspect of confidentiality to pass it on by will. Thus, carefully drafted wills can operate to ensure that customary law obligations spelt out in the will (or even as half‐secret trusts to ensure confidentiality) will be recognised and given legal force by the common law.

Teaching

I spent last night reading Richard Hil's Whackademia: An Insider’s Account of The Troubled University (Sydney: Newsouth 2012), a somewhat depressing complement to critiques such as The Australian academic profession in transition: Addressing the challenge of reconceptualising academic work and regenerating the academic workforce (Melbourne: Centre for the Study of Higher Education 2011) by Bexley, James & Arkoudis; ‘The ERA and Journal Ranking: The Consequences of Australia’s fraught encounter with ‘quality’’ by Cooper & Poletti in 53(1) Australian Universities Review (2011) and Margaret Thornton’s Privatising the Public University: The Case of Law (Routledge 2012). More hope is offered  by the marvellous Prue Vines in 'Working Towards the Resilient Lawyer: Early Law School Strategies' (UNSW Law Research Paper No. 2011-30).

She comments that

We know that law students suffer disproportionate levels of depression compared with other students. This paper draws on research which suggests some possible reasons why and approaches to the development of resilience within the academic environment. It is argued that the resilient lawyer (one whose mind is well-furnished beyond the black letter law and whose understanding of self and ethical and other life problems has been developed ) is a reasonable goal for law schools to keep in mind. In planning for the first year experience it is useful to keep this in mind and begin to bed down some of the skills and attitudes which are most likely to enhance the development of the resilient lawyer.

Vines goes on to argue that

Many legal academics are concerned at the swing towards thinking about the mental health of students. There are many reasons why they are right to be concerned. We are not counsellors; we are not specialists in mental health, and we should not see ourselves in those roles. However, we are concerned with our students’ minds. And we waste all our time when a bright student sinks and falls, taking with them all they’ve learned. As people who teach law to people who may or may not be lawyers our interest is in helping to shape people who benefit society through their understanding of the rule of law in the broadest sense, as well as the details of legal argument etc. The Council of Australian Law Deans has suggested that the mental health of law students might become one of the standards or goals of Law Schools: One must be cautious not to over-reach, but a possible articulation of the relevant sentiment might take the form of Standard 1.3.4: 

"The law school’s objectives include demonstrating a high regard for the mental wellbeing of its students and to improving their awareness of the stresses associated with legal education and practice and the means to manage them." 

... It is relatively easy to present students with realistic ethical dilemmas, building from plagiarism treated as an ethical problem up to significant professional ethical dilemmas such as your boss requiring you to do something repugnant where you have to weigh up your need to have a job against your ethical standards. Giving realistic scenarios for role plays allows students to practice what they might come up against. Discussing them in class helps students to develop a ‘grammar’ for discussing such dilemmas. This can be done not only in Legal Ethics courses, but also in torts or contracts or property courses. 

The literature suggests that people who choose law for themselves (rather than because their parents told them to do it or they got the marks) do so because their personality type is more likely to be a ‘helper’ type. These are the students who want to fight for justice; they are also the ones who are most discomfited by ethical dilemmas. I suggest to you that these are the ones we really want to be practising as lawyers. The importance of building their sense of authentic self with a grammar for discussing ethical issues is vital for them. For the others, that ethical sense may need to be awakened in some way, although young people are very often extremely idealistic. When we can harness that idealism to a practical ethical understanding we have the best chance of developing the kind of lawyers I believe our society needs. If the aim is resilience, though, it is important that the students do not get the Hollywood version of ethics ‐ the pie in the sky, it will all come right in the end and we’ll live happily ever after version. The reality is that ethical problems can bite deep, and they can take away one’s livelihood.

Advertising Homeopathy

In a recent item in the leading Australian interdisciplinary academic forum I noted the potential scope for Australian consumer protection law to address claims by vendors of homeopathic pills and potions, referring to action by the Australian Competition & Consumer Commission (ACCC) regarding the advertising of ‘bio magnetic therapy’ products [PDF] and the wrist "power band" that had been strongly promoted by celebrities. The ACCC politely commented that "Suppliers ... must ensure that they are not claiming supposed benefits when there is no supportive scientific evidence. Consumers should be wary of other similar products on the market that make unsubstantiated claims, when they may be no more beneficial than a rubber band".

The item about US and Canadian class action against a homeopathic influenza product is interesting because the tenet of extreme dilution that is central to homeopathy - "the more dilute the remedy, the greater its potency", aka the “law of the infinitesimal dose” - means that a pharmacologically active compound is undetectable in many homeopathic pills, potions and salves. If that compound can not be detected - and by implication is not present - claims that the product is chemically efficacious (as distinct from the placebo effect) are deceptive. Commercial deception can be addressed under consumer protection law.

(In relation to the placebo effect it is worth recalling the 2010 report by UK House of Commons Science & Technology Committee on homeopathy [PDF], which commented that “beyond ethical issues and the integrity of the doctor-patient relationship, prescribing pure placebos is bad medicine”.)

The North American litigation centres on the argument that the consumers of the flu 'remedy' are in fact paying for expensive sachets of coloured and flavoured sugar that contain no active ingredients. Marketing of the remedy as having active ingredients is deceptive.

From a therapeutic perspective those consumers might get greater benefits from keeping warm and hydrated, cuddling the family dog, getting some sleep or otherwise letting their bodies cure themselves rather than indulging in what - from a medical perspective - is the equivalent of voodoo.

An ACCC media release earlier this month stated that -

Homeopathy Plus! Pty Ltd has removed representations from its website that the Australian Competition and Consumer Commission considered to be misleading and deceptive and that could lead to serious health risks for consumers. 

The representations were made on the ‘Whooping Cough – Homeopathic Prevention and Treatment’ page which has since been removed from the Homeopathy Plus! website. 

“The combination of claims that the vaccine was ineffective and that the homeopathic remedies listed on the page were an alternative prevention and treatment regime elevated this matter to one of extreme concern,” ACCC Chairman Rod Sims said. 

The ACCC examined content on the Homeopathy Plus! website following a complaint from the medical profession. The ACCC considered that the Homeopathy Plus! claims that the current whooping cough vaccine is dangerous and ineffective, while the homeopathic remedy is a proven and safe alternative, were likely to be misleading or deceptive. 

Reliance on these claims may influence consumers to avoid the whooping cough vaccine and rely solely on the homeopathic approach for treatment and prevention of whooping cough, which is strongly discouraged by medical professionals. Whooping cough is a serious respiratory infection which can cause a long coughing illness and is life threatening for babies. 

The ACCC result was considerably assisted by the engagement of the Therapeutic Goods Administration and NSW Fair Trading with Homeopathy Plus! Pty Ltd in resolving this matter. 

The ACCC will continue to monitor the Homeopathy Plus! Pty Ltd site for potential breaches of the Australian Consumer Law.

Implicitly, parents may indulge themselves with the contemporary version of 1920s snake oil but should not injure their own children or other families through reliance on 'alternative medicine'. Vendors should not make deceptive claims.

EU Citizenship

'The Present and the Future of EU Citizenship: A Bird’s Eye View of the Legal Debate' by Dimitry Kochenov scrutinises -

 the last ten years of the academic debate on EU citizenship law taking nine fundamental disagreements among scholars as staring points. It explores EU citizenship’s relationship with three groups of issues of fundamental importance, including the place of this concept within the fabric of EU law, the influence of this concept on the essence of the Union as a system of multilevel governance, and its impact on the lives of ordinary Europeans. A number of key works which influenced the Court and the legislator in the recent years is assessed to outline the likely direction of future research, as well as future EU citizenship’s development. Although the literature on the subject is overwhelmingly rich and diverse, this article aspires to provide a representative sample of issues of interest for the framing of the concept at issue from a supranational perspective, necessarily leaving national (or nationalistic) literatures aside.

In the Conclusion to a rich 68 page resource Kochenov comments that -

Agreeing with Williams, "the ECJ’s future challenges are both administrative and philosophical in nature". The same applies to legal scholarship. While philosophical challenges present a truly fundamental challenge, the majority of the literature, strangely, focuses on the administrative ones. To realize EU citizenship’s full potential this will have to change. As this overview has demonstrated, plenty of scholars are engaged with EU citizenship, yet, the most important problems underlying its essence are only tackled by very few commentators, led by Gareth Davies, Dora Kostakopoulou, Andrew Williams and Joseph Weiler. The constructive potential of EU citizenship is unlikely to be fully realized without a shift in the register of scholarly engagement with this important area of law. To be successful in shaping the Union in the years to come such commentary will have to be less ideological and less distracted by day-to-day events. Lastly, drawing inspiration only from the negative features of EU citizenship, opposing it to a State is potentially dangerous – a more balanced account of the concept has to be created.

Smut

'Arcane Erotica and National ‘Patrimony’: Britain’s Private Case and the Collection de l’Enfer of the Bibliothèque Nationale de France' by Alison Moore in (2012) 18(1) Cultural Studies Review 196-216 considers -

the broad politics of the creation and maintenance of two large erotica collections in European national libraries across their histories and in relation to definitions of censorship and obscenity. It also examines the popular and intellectual discourses that have surrounded the Collection de l’Enfer and the Private Case of the British Library, and imbued them with a particular cultural mystique as repositories of secret, hidden and privileged erotic knowledge. Censorship and repression of sexuality cannot account for the policies of these libraries which have policed public morals through their restricted access conditions, even as the works they deemed obscene were published without any legal sanction. By classing their contents into a discreet category, these collections have helped to frame erotic signification as a separate body of meaning. In France the notion of the Enfer’s place within national patrimony has particularly abetted the discourses of mystique and allure around it. In Britain, the bibliographers who have discussed the Private Case have done so through assumptions of masculine heterosexual privilege and normativity.

Moore comments that

Both Kearney and Legman invoked the spectre of the perverse erotica as a part of a protest against the censorship and library access restriction of the kinds of materials that appealed to their own tastes. The difficulties of using erotica collections (for Kearney) and the frustrations of state censorship (for Legman) thus both enabled an invocation of unjust hypocrisy in the repression of wholesome desires at the hands of perverse elites. The nonsensical order in which cheerful antique heterosexual smut remained unlisted in catalogues and locked in a safe in the basement of the British Library while tacky SM pornographic films like Ilsa, She-Wolf of the SS could be purchased from mail-order catalogues, drove Legman and others to speculate that corrupt elites must be responsible for ensuring that their own perverse preferences were publicly circulated while more wholesome erotica lay out of reach. 

For Legman ‘normally erotic art and literature’—a large proportion of the kinds of works that filled the Private Case—were ever vulnerable to ‘the sadists who are running the show owing to the tremendous monetary and power advantage their cold immorality gives them over the majority of normal people’. This is clearly a rather loaded remark, suggesting that sexual perversion cohabits necessarily with the highest of political elites and that a lack of all morals, which is necessarily indicated by an SM erotic disposition, is indeed even the very source of power for political elites who control state institutions. It is curious that Legman and Kearney attributed privilege to those ‘other’ desires, given that it was they themselves, with their self-assumed ‘normal’ sensibilities, who were precisely the ones to gain privileged access to the exclusive Private Case at the height of its inaccessibility. 

This type of view about sadomasochistic desire as the cause and foundational pathology of authoritarian power was ubiquitous in postwar European cultures, and ensured that such fantasies both suffered from, and enjoyed, a level of taboo and exquisite unspeakability. As the work of Kriss Ravetto, Marcus Stiggleger, Andrew Hewitt, Carolyn J. Dean, myself and others have shown, the attempt, in one form or another, to create connections between aberrant sexual desire and Nazism has been a recurring theme throughout expression of World War II memory, in historical, philosophical, cinematic, media, political and literary forms. Legman’s and Kearney’s concern to assert a normative pleasure in association with their struggle for greater freedom from censorship and restricted access to erotic archives must be seen with the context of that larger Zeitgeist. But the assertion helped to suggest a view of erotica collections as secret, mysterious and arcane: if perverse elites were so keen to stop the masses from accessing their contents, then something both precious and forbidden must surely be contained within. 

When the BNF opened its Collection de l’Enfer for public exhibition in 2008, the sexual content of its texts was revealed in all its antiquarian splendour. Although the themes and acts depicted in works such as the 1749 Memoirs of Fanny Hill or the 1771 Venus En Rut are explicit and varied, they could hardly compete in the stakes of obscenity compared to the vast array of freely available pornography now available to anyone with an internet connection. But in a more subtle regard, the knowledge of old erotica may indeed unsettle modern assumptions, namely the still-common myth that the late twentieth century has brought more imaginative liberation into sexual practices and fantasies in the post-industrial world through the greater availability of sexual imagery and the collapse of social mores relating to sexual and bodily containment. This is the teleological myth of sexual progress mentioned by Foucault. Pre-nineteenth-century erotic fiction in particular has the capacity to diversify appreciation of sexual possibilities through the fundamentally differing visions of pleasure and technique that can be found in many early modern erotic texts. As the work of Peter Cryle has shown, the pleasure structures of eighteenth-century libertine arousal lacked all concept of ‘foreplay’ and of the sudden climactic finality of the modern concept of orgasm. Many of the works contained in the Enfer collection are of that genre Foucault described as the ‘ars erotica’, in opposition to the later, medicalised ‘scientia sexualis’ of nineteenth-century texts. Although we now have a range of diverse views of sexual possibility, normality, necessity and satisfaction at our global electronic disposal, the understandings that contemporary erotica suggests are also still conditioned by a range of continuing medical discourses of sex. The Enfer and the Private Case texts may not deliver on the promise of forbidden secrets that their reputation has so long suggested, but perhaps in their vision of playful games, rebounding pleasures and artistic techniques of seduction and arousal, there is nonetheless an antidote to the banality of post-industrial porn?