Academic literature on the topic 'Non-traditional trade mark'

The adoption of the EU in 2015 the Directive 2015/2436 and Regulation 2015/2424 resulted in significant changes for the protection of trade marks at the level of the Member States and the EU trade mark. These changes are the result of the policy of the entire approximation of Member States laws in all issues of trademarks, which differs from the harmonization of «minimum rights» and the EU approach to harmonization of legislation on other industrial property objects. Comparison of changes to EU legislation and legislation of Ukraine demonstrates the necessity of making a number of amendments to national legislation regarding registration of scent and other non- traditional marks; clarify the scope of protection of rights; grounds for refusal of registration; concluding license agreements, protection of collective marks etc. It is essential to provide the clarification of the procedure for registration of trademarks in Ukraine to ensure compliance with the registration procedure, established by the Directive 2015/2436.

Shakespeare's famed citation “What's in a name? That which we call a rose by any other name would smell as sweet” may be one of the most used quotations in contemporary literature. It serves to provide guidance in reviewing ones assessment of new perspectives on a given topic. The implications of the quotation induce the reader to feel concordant with the assumption that whatever name a given phenomenon is accorded, it is of little importance because the objects are similar and hence there is no reason to emphasise a peripheral and meaningless concept such as a name and the idea which it embraces. By contrast, intellectual property rights, and therein trademark law, is conceptually based on the assumption that a verbal mark, figure or colour of a given good or service need to be protected since these immaterial notions give rise to patrimonial rights conferred to the owner of the registered trademark. A well known slogan or figurative mark is capable of having significant commercial value as demonstrated in the recent dispute between Apple and Cisco concerning the right of the former to use the trademark iPhone. However, it is important to note that the essential raison d'ětre of trademark law is not only to confer patrimonial rights to a legal or natural person and thus prevent an abusive use by a third party, but essentially to guarantee the origin of goods or services to the consumer and hence enable him, without any danger of confusion, to distinguish the goods or services from others which have another origin. Having said that it should also be noted that traditional trademark theory is perceived on the assumption that trademarks serve to minimize the likelihood of consumer confusion and prohibits the use of a trademark with regard to competing or similar goods only. However the “dilution theory” challenges this approach to trademark law as it also disseminates the postulate to prohibit the use of certain famous and/or characteristic trademarks on non-competing goods on the ground that such use dilutes and possibly erodes a given trademark's commercial value and its hold on the consumer.

Traditional Filuferru is an ancient spirit from Sardinia, Italy, which is usually obtained from the distillation of wine or grape marc. In this contribution, the results of the first chemical characterization of a wide number of crafts Filuferru samples has been accomplished in terms of an evaluation of the alcoholic strength, qualitative and quantitative gas-chromatography–mass spectrometry (GC-MS) analysis of the volatile composition of the distillate, and its trace element composition by means an inductively coupled plasma–mass spectrometry (ICP-MS) method. Both instrumental methods have been validated and applied on 21 craft samples of Filuferru, whereas one sample of commercial distillate has been analyzed for comparison purposes. Alcoholic strength ranged between 41.0 and 62.4% (v/v). Sixty volatile compounds were identified and ten of them have been quantified. Analogies and differences with Grappa (i.e., the Italian distilled spirit closer to Filuferru) have been highlighted in the qualitative and quantitative profile of this matrix. Often meaningful amounts of acetaldehyde, ethyl acetate, dietyl acetal, and acetic acid were measured. Elemental analysis, performed on toxic, non-toxic elements, and oligoelements, 18 in total, revealed a wide variability of concentrations in both analytes and samples. High concentrations of Cu are sometimes evidenced, which are likely caused by losses from the distillation apparatus. The principal components analysis (PCA) allowed the differentiation of the ten volatile compounds quantified in two groups: the former, as described mainly by PC1, constituted by acetic acid, ethyl acetate, dietyl acetal, and acetaldehyde, and the second, described by PC2, constituted by 1-propanol, 2-methyl-1-propanol, the two coeluiting isomers 2-methyl-1-butanol and 3-methyl-1-butanol,1-hexanol, 2-phenylethanol, and 2,3-butanediol. Data obtained may be useful in order to establish a regulation for the production of high-quality traditional Filuferru from Sardinia.

Background. At the beginning of the 20th century American music gradually emerges from the shadow of Europe and takes its rightful place. This unique cultural phenomenon arises from the creative work of a brilliant generation of artists. Some authors preferred to develop traditional methods of compositions, others expressed nontraditional, sometimes even shocking, views on the very process of creativity and tasks of art in general. Different thinking, non-standard sound perception, a special approach to creation based on rejection of the ordinary and lack of borders – all this distinguished Americans not only from European traditionalists, but also from modernists. Objectives. The purpose of the paper is to determine peculiarities of implementation of innovative ideas in J. Cage’s cycle "The Perilous Night" for prepared piano. Methods. The study uses a comprehensive approach with the application of intonational, semantic, structural and functional methods for analyzing musical text. Results. The most famous and infl uential fi gure in American music of the last century was John Cage (1912–1992), whose name became synonymous with everything most epic and radical in music. It is diffi cult to characterize this person only as a composer, since the range of his interests was extremely wide: he was also a writer, philosopher, inventor, performer, lecturer, organizer of performances, etc. The most famous invention of J. Cage turned out to be a "prepared piano". This instrument refl ects the composer’s inclination towards percussions, that is, the active engagement of noises as the main musical material and thirst for experiments. A more mature example of putting J. Cage’s innovative ideas in life is his suite "The Perilous Night", composed in 1944. It was this piece which became the fi rst large-scale opus for prepared piano, written not for accompaniment, but as an independent artistic concept. This opus is a unique example where the author, who actively rejected the idea of expressing feelings through music, speaks with us in the language of emotions. "The Perilous night", as well as other works for prepared piano, is designed in the technique which M. Pereverzeva calls "sononant modality". This name indicates the combination of two approaches – a coloristic and a structural one. The composer achieves organic in this alliance by creating for each opus a certain series made up not of traditional musical sounds, but of noises, overtones and other colorful sonorities. So, J. Cage seems to play a game with the performer, creating a certain puzzle that must be decrypted in the process of preparing for the performance. The key to it is the so-called "preparation chart ", which always precedes the musical text and contains the following mandatory columns: 1. a sound written in notes; 2. material necessary for preparation, 3. strings, between which it must be put (from left to right); 4. distance of material placement, calculated from the damper (in inches). The expanded chart of " The Perilous night" is visually divided into two sections, since each of these elements is duplicated; so, on the left side we fi nd mainly soft and wooden objects (foam rubber, felt, bamboo wedge), and on the right side there are metal things (screws and bolts with or without a nut). A full "tone row" appears only in the chart and can be used when talking about the cycle as a whole. In each of the six pieces, the composer operates a certain set of sounds, which of course belong to it, but they are employed extremely selectively, depending on specifi c artistic tasks. Thus, all numbers receive their unique combination of voices that form a "microtone row" of miniatures. The number of sonants in it varies from fi ve to eighteen and does not depend on the size of the piece. In the cycle, there is a multilevel relationship between its parts, which, on the one hand, coloristically and texture-rhythmically are in contrast with each other, ensuring contraposition of states and diversity of colours, and, on the other hand, make internal connections that provide the indivisibility and logic of the cyclic composition. No less individually J. Cage interprets the principle of applying certain numerical proportions in the process of developing a musical composition. Basing on the combination of Eastern trends, primarily Indian talas and ragas, and Western music, he formed the basis of the so-called "rhythmic pattern" of the composer. In all six parts of "The Perilous Night" you can trace the effect of numerical proportions at different levels of the pattern. One of them is the "square root principle", which, in particular, determines the logic of the composition of the third piece. J. Cage uses two bar lines to seperate twelve sections of twelve bars, that is, 12 to the 2nd power. The fi rst four sections are rich in sound events, they feature different texture techniques and many tone colours in all sorts of combinations. The basic principle of development is the variation of primary elements, but no section repeats in exactly the same way. Another picture is observed in the last eight bars. Repetition here is used not at the level of elements, but at the level of sections. The fi fth section is exactly equal to the eighth, and the sixth – to the seventh, ninth and eleventh ones. Visually, this is accentuated by the traditional mark of reprise, which of course is compulsory otherwise the form is distorted. It seems that here J. Cage looks for the end of the piece, and eventually focues on the last four bars of the sixth (seventh, ninth and eleventh) sections, which become the tenth and twelfth sections respectively, and gradually fade in space. Conclusions. J. Cage’s suite "The Perilous Night" occupies an important place in his creative work. This is his fi rst large-scale work for prepared piano, which does not depend on a dance, as it has a unique dramaturgy based on refl ection of the emotional state of a person. At the same time, the cycle harmoniously combines principles of sononant modality and numerical series technique, which are typical for the composer.

This article considers the necessity of preparing a comprehensive study, over absolute refusal grounds pertaining to functional signs set in the EU trademark law, which would meet the business community’s need to register non-traditional trade marks. The study aims to define the exact scope of the aforementioned exclusions through objective criteria that can render them a workable tool, distinct from refusal grounds pertaining to distinctiveness, and able to solve problems of overlapping rights. As its specific research methodology, the study adopts comparative results coming from the US trade dress functionality doctrine, and a specific input offered from a ‘law and economics’ perspective, including competition rules related to market definition and substitutability of products.

IntroductionOver three days in November 2017, 400 people gathered for a conference at the Sam’s Town Hotel and Gambling Hall in Las Vegas, Nevada. The majority of attendees were fiction authors but the conference program looked like no ordinary writer’s festival; there were no in-conversation interviews with celebrity authors, no panels on the politics of the book industry and no books launched or promoted. Instead, this was a gathering called 20Books2017, a self-publishing conference about the business of fiction ebooks and there was expertise in the room.Among those attending, 50 reportedly earned over $100,000 US per annum, with four said to be earning in excess of $1,000,000 US year. Yet none of these authors are household names. Their work is not adapted to film or television. Their books cannot be found on the shelves of brick-and-mortar bookstores. For the most part, these authors go unrepresented by the publishing industry and literary agencies, and further to which, only a fraction have ever actively pursued traditional publishing. Instead, they write for and sell into a commercial fiction market dominated by a single retailer and publisher: online retailer Amazon.While the online ebook market can be dynamic and lucrative, it can also be chaotic. Unlike the traditional publishing industry—an industry almost stoically adherent to various gatekeeping processes: an influential agent-class, formalized education pathways, geographic demarcations of curatorial power (see Thompson)—the nascent ebook market is unmapped and still somewhat ungoverned. As will be discussed below, even the markets directly engineered by Amazon are subject to rapid change and upheaval. It can be a space with shifting boundaries and thus, for many in the traditional industry both Amazon and self-publishing come to represent a type of encroaching northern dread.In the eyes of the traditional industry, digital self-publishing certainly conforms to the barbarous north of European literary metaphor: Orwell’s ‘real ugliness of industrialism’ (94) governed by the abject lawlessness of David Peace’s Yorkshire noir (Fowler). But for adherents within the day-to-day of self-publishing, this unruly space also provides the frontiers and gold-rushes of American West mythology.What remains uncertain is the future of both the traditional and the self-publishing sectors and the degree to which they will eventually merge, overlap and/or co-exist. So-called ‘hybrid-authors’ (those self-publishing and involved in traditional publication) are becoming increasingly common—especially in genre fiction—but the disruption brought about by self-publishing and ebooks appears far from complete.To the contrary, the Amazon-led ebook iteration of this market is relatively new. While self-publishing and independent publishing have long histories as modes of production, Amazon launched both its Kindle e-reader device and its marketplace Kindle Direct Publishing (KDP) a little over a decade ago. In the years subsequent, the integration of KDP within the Amazon retail environment dramatically altered the digital self-publishing landscape, effectively paving the way for competing platforms (Kobo, Nook, iBooks, GooglePlay) and today’s vibrant—and, at times, crassly commercial—self-published fiction communities.As a result, the self-publishing market has experienced rapid growth: self-publishers now collectively hold the largest share of fiction sales within Amazon’s ebook categories, as much as 35% of the total market (Howey). Contrary to popular belief they do not reside entirely at the bottom of Amazon’s expansive catalogue either: at the time of writing, 11 of Amazon’s Top 50 Bestsellers were self-published and the median estimated monthly revenue generated by these ‘indie’ books was $43,000 USD / month (per author) on the American site alone (KindleSpy).This international publishing market now proffers authors running the gamut of commercial uptake, from millionaire successes like romance writer H.M. Ward and thriller author Mark Dawson, through to the 19% of self-published authors who listed their annual royalty income as $0 per annum (Weinberg). Their overall market share remains small—as little as 1.8% of trade publishing in the US as a whole (McIlroy 4)—but the high end of this lucrative slice is particularly dynamic: science fiction author Michael Anderle (and 20Books2017 keynote) is on-track to become a seven-figure author in his second year of publishing (based on Amazon sales ranking data), thriller author Mark Dawson has sold over 300,000 copies of his self-published Milton series in 3 years (McGregor), and a slew of similar authors have recently attained New York Times and US Today bestseller status.To date, there is not a broad range of scholarship investigating the operational logics of self-published fiction. Timothy Laquintano’s recent Mass Authorship and the Rise of Self-Publishing (2016) is a notable exception, drawing self-publishing into historical debates surrounding intellectual property, the future of the book and digital abundance. The more empirical portions of Mass Authorship—taken from activity between 2011 to 2015—directly informs this research and his chapter on Amazon (Chapter 4) could be read as a more macro companion to my findings below; taken together and compared they illustrate just how fast-moving the market is. Nick Levey’s work on ‘post-press’ literature and its inherent risks (and discourses of cultural capitol) also informs my thesis here.In addition to which, there is scholarship centred on publishing more generally that also touches on self-published writers as a category of practitioner (see Baverstock and Steinitz, Haughland, Thomlinson and Bélanger). Most of this later work focuses almost entirely on the finished product, usually situating self-publishing as directly oppositional to traditional publishing, and thus subordinating it.In this paper, I hope to outline how the self-publishers I’ve observed have enacted various tactical approaches that specifically strive to tame their chaotic marketplace, and to indicate—through one case study (Amazon exclusivity)—a site of production and resistance where they have occasionally succeeded. Their approach is one that values information sharing and an open-source approach to book-selling and writing craft, ideologies drawn more from the tech / start-up world than commercial book industry described by Thompson (10). It is a space deeply informed by the virtual nature of its major platforms and as such, I argue its relation to the world of traditional publishing—and its representation within the traditional book industry—are tenuous, despite the central role of authorship and books.Making the Virtual Self-Publishing SceneWithin the study of popular music, the use of Barry Shank and Will Straw’s ‘scene’ concept has been an essential tool for uncovering and mapping independent/DIY creative practice. The term scene, defined by Straw as cultural space, is primarily interested in how cultural phenomena articulates or announces itself. A step beyond community, scene theorists are less concerned with examining an evolving history of practice (deemed essentialist) than they are concerned with focusing on the “making and remaking of alliances” as the crucial process whereby communal culture is formed, expressed and distributed (370).A scene’s spatial dimension—often categorized as local, translocal or virtual (see Bennett and Peterson)—demands attention be paid to hybridization, as a diversity of actors approach the same terrain from differing vantage points, with distinct motivations. As a research tool, scene can map action as the material existence of ideology. Thus, its particular usefulness is its ability to draw findings from diverse communities of practice.Drawing methodologies and approaches from Bourdieu’s field theory—a particularly resonant lens for examining cultural work—and de Certeau’s philosophies of space and circumstantial moves (“failed and successful attempts at redirection within a given terrain,” 375), scene focuses on articulation, the process whereby individual and communal activity becomes an observable or relatable or recordable phenomena.Within my previous work (see Bennett and Rogers, Rogers), I’ve used scene to map a variety of independent music-making practices and can see clear resemblances between independent music-making and the growing assemblage of writers within ebook self-publishing. The democratizing impulses espoused by self-publishers (the removal of gatekeepers as married to visions of a fiction/labour meritocracy) marry up quite neatly with the heady mix of separatism and entrepreneurialism inherent in Australian underground music.Self-publishers are typically older and typically more upfront about profit, but the communal interaction—the trade and gifting of support, resources and information—looks decidedly similar. Instead, the self-publishers appear different in one key regard: their scene-making is virtual in ways that far outstrip empirical examples drawn from popular music. 20Books2017 is only one of two conferences for this community thus far and represents one of the few occasions in which the community has met in any sort of organized way offline. For the most part, and in the day-to-day, self-publishing is a virtual scene.At present, the virtual space of self-published fiction is centralized around two digital platforms. Firstly, there is the online message board, of which two specific online destinations are key: the first is Kboards, a PHP-coded forum “devoted to all things Kindle” (Kboards) but including a huge author sub-board of self-published writers. The archive of this board amounts to almost two million posts spanning back to 2009. The second message board site is a collection of Facebook groups, of which the 10,000-strong membership of 20BooksTo50K is the most dominant; it is the originating home of 20Books2017.The other platform constituting the virtual scene of self-publishing is that of podcasting. While there are a number of high-profile static websites and blogs related to self-publishing (and an emerging community of vloggers), these pale in breadth and interaction when compared to podcasts such as The Creative Penn, The Self-Publishing Podcast, The Sell More Books Show, Rocking Self-Publishing (now defunct but archived) and The Self-Publishing Formula podcast. Statistical information on the distribution of these podcasts is unavailable but the circulation and online discussion of their content and the interrelation between the different shows and their hosts and guests all point to their currency within the scene.In short, if one is to learn about the business and craft production modes of self-publishing, one tends to discover and interact with one of these two platforms. The consensus best practice espoused on these boards and podcasts is the data set in which the remainder of this paper draws findings. I have spent the last two years embedded in these communities but for the purposes of this paper I will be drawing data exclusively from the public-facing Kboards, namely because it is the oldest, most established site, but also because all of the issues and discussion presented within this data have been cross-referenced across the different podcasts and boards. In fact, for a long period Kboards was so central to the scene that itself was often the topic of conversation elsewhere.Sticking in the Algorithm: The Best Practice of Fiction Self-PublishingSelf-publishing is a virtual scene because its “constellation of divergent interests and forces” (Shank, Preface, x) occur almost entirely online. This is not just a case of discussion, collaboration and discovery occurring online—as with the virtual layer of local and translocal music scenes—rather, the self-publishing community produces into the online space, almost exclusively. Its venues and distribution pathways are online and while its production mechanisms (writing) are still physical, there is an almost instantaneous and continuous interface with the online. These writers type and, increasingly dictate, their work into the virtual cloud, have it edited there (via in-text annotation) and from there the work is often designed, formatted, published, sold, marketed, reviewed and discussed online.In addition to which, a significant portion of these writers produce collaborative works, co-writing novels and co-editing them via cooperative apps. Teams of beta-readers (often fans) work on manuscripts pre-launch. Covers, blurbs, log lines, ad copy and novel openings are tested and reconfigured via crowd-sourced opinion. Seen here, the writing of the self-publishing scene is often explicitly commercial. But more to the fact, it never denies its direct co-relation with the mandates of online publishing. It is not traditional writing (it moves beyond authorship) and viewing these writers as emerging or unpublished or indeed, using the existing vernacular of literary writing practices, often fails to capture what it is they do.As the self-publishers write for the online space, Amazon forms a huge part of their thinking and working. The site sits at the heart of the practices under consideration here. Many of the authors drawn into this research are ‘wide’ in their online retail distribution, meaning they have books placed with Amazon’s online retail competitors. Yet the decision to go ‘wide’ or stay exclusive to Amazon — and the volume of discussion around this choice — is illustrative of how dominant the company remains in the scene. In fact, the example of Amazon exclusivity provides a valuable case-study.For self-publishers, Amazon exclusivity brings two stated and tangible benefits. The first relates to revenue diversification within Amazon, with exclusivity delivering an additional revenue stream in the form of Kindle Unlimited royalties. Kindle Unlimited (KU) is a subscription service for ebooks. Consumers pay a flat monthly fee ($13.99 AUD) for unlimited access to over a million Kindle titles. For a 300-page book, a full read-through of a novel under KU pays roughly the same royalty to authors as the sale of a $2.99 ebook, but only to Amazon-exclusive authors. If an exclusive book is particularly well suited to the KU audience, this can present authors with a very serious return.The second benefit of Amazon exclusivity is access to internal site merchandising; namely ‘Free Days’ where the book is given away (and can chart on the various ‘Top 100 Free’ leaderboards) and ‘Countdown Deals’ where a decreasing discount is staggered across a period (thus creating a type of scarcity).These two perks can prove particularly lucrative to individual authors. On Kboards, user Annie Jocoby (also writing as Rachel Sinclair) details her experiences with exclusivity:I have a legal thriller series that is all-in with KU [Kindle Unlimited], and I can honestly say that KU has been fantastic for visibility for that particular series. I put the books into KU in the first part of August, and I watched my rankings rise like crazy after I did that. They've stuck, too. If I weren't in KU, I doubt that they would still be sticking as well as they have. (anniejocoby)This is fairly typical of the positive responses to exclusivity, yet it incorporates a number of the more opaque benefits entangled with going exclusive to Amazon.First, there is ‘visibility.’ In self-publishing terms, ‘visibility’ refers almost exclusively to chart positions within Amazon. The myriad of charts — and how they function — is beyond the scope of this paper but they absolutely indicate — often dictate — the discoverability of a book online. These charts are the ‘front windows’ of Amazon, to use an analogy to brick-and-mortar bookstores. Books that chart well are actively being bought by customers and they are very often those benefiting from Amazon’s powerful recommendation algorithm, something that expands beyond the site into the company’s expansive customer email list. This brings us to the second point Jocoby mentions, the ‘sticking’ within the charts.There is a widely held belief that once a good book (read: free of errors, broadly entertaining, on genre) finds its way into the Amazon recommendation algorithm, it can remain there for long periods of time leading to a building success as sales beget sales, further boosting the book’s chart performance and reviews. There is also the belief among some authors that Kindle Unlimited books are actively favoured by this algorithm. The high-selling Amanda M. Lee noted a direct correlation:Rank is affected when people borrow your book [under KU]. Page reads don't play into it all. (Amanda M. Lee)Within the same thread, USA Today bestseller Annie Bellet elaborated:We tested this a bunch when KU 2.0 hit. A page read does zip for rank. A borrow, even with no pages read, is what prompts the rank change. Borrows are weighted exactly like sales from what we could tell, it doesn't matter if nobody opens the book ever. All borrows now are ghost borrows, of course, since we can't see them anymore, so it might look like pages are coming in and your rank is changing, but what is probably happening is someone borrowed your book around the same time, causing the rank jump. (Annie B)Whether this advantage is built into the algorithm in a (likely) attempt to favour exclusive authors, or by nature of KU books presenting at a lower price point, is unknown but there is anecdotal evidence that once a KU book gains traction, it can ‘stick’ within the charts for longer periods of time compared to non-exclusive titles.At the entrepreneurial end of the fiction self-publishing scene, Amazon is positioned at the very centre. To go wide—to follow vectors through the scene adjacent to Amazon — is to go around the commercial centre and its profits. Yet no one in this community remains unaffected by the strategic position of this site and the market it has either created or captured. Amazon’s institutional practices can be adopted by competitors (Kobo Plus is a version of KU) and the multitude of tactics authors use to promote their work all, in one shape or another, lead back to ‘circumstantial moves’ learned from Amazon or services that are aimed at promoting work sold there. Further to which, the sense of instability and risk engendered by such a dominant market player is felt everywhere.Some Closing Ideas on the Ideology of Self-PublishingSelf-publishing fiction remains tactical in the de Certeau sense of the term. It is responsive and ever-shifting, with a touch of communal complicity and what he calls la perruque (‘the wig’), a shorthand for resistance that presents itself as submission (25). The entrepreneurialism of self-published fiction trades off this sense of the tactical.Within the scene, Amazon bestseller charts aren’t as much markers of prestige as systems to be hacked. The choice between ‘wide’ and exclusive is only ever short-term; it is carefully scrutinised and the trade-offs and opportunities are monitored week-to-week and debated constantly online. Over time, the self-publishing scene has become expert at decoding Amazon’s monolithic Terms of Service, ever eager to find both advantage and risk as they attempt to lever the affordances of digital publishing against their own desire for profit and expression.This sense of mischief and slippage forms a big part of what self-publishing is. In contrast to traditional publishing—with its long lead times and physical real estate—self-publishing can’t help but appear fragile, wild and coarse. There is no other comparison possible.To survive in self-publishing is to survive outside the established book industry and to thrive within a new and far more uncertain market/space, one almost entirely without a mapped topology. Unlike the traditional publishing industry—very much a legacy, a “relatively stable” population group (Straw 373)—self-publishing cannot escape its otherness, not in the short term. Both its spatial coordinates and its pathways remain too fast-evolving in comparison to the referent of traditional publishing. In the short-to-medium term, I imagine it will remain at some cultural remove from traditional publishing, be it perceived as a threatening northern force or a speculative west.To see self-publishing in the present, I encourage scholars to step away from traditional publishing industry protocols and frameworks, to strive to see this new arena as the self-published authors themselves understand it (what Muggleton has referred to a “indigenous meaning” 13).Straw and Shank’s scene concept provides one possible conceptual framework for this shift in understanding as scene’s reliance on spatial considerations harbours an often underemphazised asset: it is a theory of orientation. At heart, it draws as much from de Certeau as Bourdieu and as such, the scene presented in this work is never complete or fixed. It is de Certeau’s city “shaped out of fragments of trajectories and alterations of spaces” (93). These scenes—be they musicians or authors—are only ever glimpsed and from a vantage point of close proximity. In short, it is one way out of the essentialisms that currently shroud self-published fiction as a craft, business and community of authors. The cultural space of self-publishing, to return Straw’s scene definition, is one that mirrors its own porous, online infrastructure, its own predominance in virtuality. Its pathways are coded together inside fast-moving media companies and these pathways are increasingly entwined within algorithmic processes of curation that promise meritocratization and disintermediation yet delivery systems that can be learned and manipulated.The agility to publish within these systems is the true skill-set required to self-publish fiction online. It traverses specific platforms and short-term eras. It is the core attribute of success in the scene. Everything else is secondary, including the content of the books produced. It is not the case that these books are of lesser literary quality or that their ever-growing abundance is threatening—this is the counter-argument so often presented by the traditional book industry—but more so that without entrepreneurial agility, the quality of the ebook goes undetermined as it sinks lower and lower into a distribution system that is so open it appears endless.ReferencesAmanda M. Lee. “Re: KU Page Reads and Rank.” Kboards: Writer’s Cafe. 1 Oct. 2007 <https://www.kboards.com/index.php/topic,232945.msg3245005.html#msg3245005>.Annie B [Annie Bellet]. “Re: KU Page Reads and Rank.” Kboards: Writer’s Cafe. 1 Oct. 2007 <https://www.kboards.com/index.php/topic,232945.msg3245068.html#msg3245068>.Anniejocoby [Annie Jocoby]. “Re: Tell Me Why You're WIDE or KU ONLY.” Kboards: Writer’s Cafe. 1 Oct. 2007 <https://www.kboards.com/index.php/topic,242514.msg3558176.html#msg3558176>.Baverstock, Alison, and Jackie Steinitz. “Why Are the Self-Publishers?” Learned Publishing 26 (2013): 211-223.Bennett, Andy, and Richard A. Peterson, eds. Music Scenes: Local, Translocal and Virtual. Vanderbilt University Press, 2004.———, and Ian Rogers. Popular Music Scenes and Cultural Memory. Palgrave Macmillan, 2016.Bourdieu, Pierre. Distinction: A Social Critique of the Judgement of Taste. Routledge, 1984.De Certeau, Michel. The Practice of Everyday Life. 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Traditional trade marks, such as words and figures, have for a long time constituted of visual signs. However, due to the evolution of modern technology and changing marketing methods, non-traditional trade marks have been increasing in todays highly competitive market.1 Consequently, the evolution created legal uncertainties in the European Union (EU) since in order to register a trade mark, it had to be represented graphically. This requirement was difficult to achieve for some non-traditional trade marks which were perceived through other sensed than the sight. On the 1 October 2017, requirement for graphical representation has been amended in the EU Trade Mark Regulation 2017/10012 by a technical neutral requirement which opens up possibilities for registration of European Union trade marks in a more suitable way, using generally available technology. The purpose of this thesis has been to analyse how the abolition of graphical representation and the new wider requirement will affect the registration of non-traditional trade marks in the EU. Signs which have been analysed in the frame of this thesis are: sound, olfactory, three-dimensional, colour, motion, multimedia, holograms, pattern, tactile and taste marks. Conclusively, I found that the technical neutral registration requirement has opened up possibilities for trade mark holders to register new types of marks like multimedia marks. Moreover, it has simplified the registration process for already accepted non-traditional trade marks such as hologram, motion and sound marks. However, the reform has hardly affected the registration process of colour, pattern and three-dimensional marks since their biggest challenge with the registration have been the requirement for distinctiveness. Furthermore, it is currently still not possible to register olfactory, tactile and taste marks. Though the new and flexible amendments indicate that those types of marks may be more easily registered in the future.

Magister Legum - LLM (Private Law)<br>A trade mark is defined as a sign that is capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trade marks, copyright, patents and designs are some of the forms of intellectual property. Trade marks can be divided into traditional trade marks and non-traditional trade marks. Traditional trade marks are capable of being represented graphically, for example logos, service marks or company names. Non-traditional trade marks are generally not capable of being represented graphically. Examples of these marks are inter alia, scent, taste, touch and sound marks. Technology is changing the way business is being conducted. The registration of nontraditional trade marks has grown exponentially as businesses seek to use innovative ways to protect their brands. Non-conventional trade marks may be visible signs, examples of which include colours, shapes, moving images, holograms and positions or non-visible signs such as sounds, scents, tastes, textures. Visible signs may easily be registered since they satisfy the requirement of graphical representation. Non-visible marks do not generally meet this requirement which makes their registration more complicated. An example of a registered visible non-traditional trade marks is the four finger shape of Kit Kat chocolates.

SANTRAUKA Šiame darbe analizuojama Europos Teisingumo Teismo ir Lietuvos teismų praktika, siekiant identifikuoti prekių ženklų tapatumo ir panašumo nustatymui reikšmingus kriterijus, šių kriterijų taikymo sąlygas bei įtaką vertinant bendrą prekių ženklų įspūdį, taip pat atkreipiamas dėmesys į teorinius ir praktinius probleminius prekių ženklų tapatumo ir panašumo nustatymo klausimus ir siūlomi jų sprendimai. Pirmojoje dalyje labai koncentruotai nurodomas su prekių ženklų tapatumu ir panašumu susijęs teisinis reglamentavimas. Antrojoje dalyje atskleidžiama prekių ženklų tapatumo sąvoka bei prekių ženklų tapatumo vertinimas buvusio Pirmosios Instancijos Teismo, dabartinio Bendrojo Teismo ir ETT praktikoje, taip pat, siekiant tapatumo klausimą išnagrinėti visapusiškai, pasiremiant pavyzdžiais ir iš Vidaus rinkos harmonizavimo tarnybos praktikos. Trečioji darbo dalis skirta aptarti prekių ženklų panašumą bei išnagrinėti jam nustatyti reikšmingus kriterijus. Šioje dalyje Bendrijos ir Lietuvos teismų sprendimų analizė atlikta pagal bendriausius prekių ženklų panašumo nustatymo kriterijus: skiriamuosius ir dominuojančius elementus, vaizdinį, fonetinį bei konceptualų lyginimą. Darbo pabaigoje atskirai aptariama netradicinių prekių ženklų panašumo nustatymo specifika.<br>SUMMARY Establishment of Identity and Similarity of Trade Marks in the Case Law of the European Court of Justice and Lithuanian Courts This master thesis is dedicated to analyze case law of the European Court of Justice and Lithuanian courts, with the aim to identify criteria significant for establishment of identity and similarity of trade marks, conditions for application of those criteria as well as influence upon evaluation of the general impression created by trade marks. In addition, attention is drawn to theoretical and practical problem issues in establishment of identity and similarity of trade marks and suggestions on their solution are made. In the first part, a list of condensed references is made to laws pertinent to the identity and similarity of trade marks. The second part reveals the concept of identity of trade marks and judgment of identity of trade marks in the case law of the former Court of First Instance, currently the General Court, and the European Court of Justice, supplemented by additional illustrations from the practice of the OHIM, in attempt of painting the full picture of the identity issue. The third part of the thesis focuses on the discussion of the similarity of trade marks and analysis of criteria for establishment of similarity of trade marks. Herein the analysis of case law of the European Court of Justice and Lithuanian courts has been carried out based on general criteria of similarity of trade marks: distinguishing and dominating... [to full text]

<p>In the search for companies to distinguish themselves from the mass, so called non-traditional trade marks have become increasingly popular, and in particular colour marks. It is now clear that abstract colour marks can be registered as trade marks, and the number of registered colour marks has increased considerably in recent years. However, it remains a lot more uncertain, mainly due to lack of case law, what the extent of colour marks’ scope of protection is. Are colours actually worth protecting? The purpose of this thesis is to examine the scope of protection of registered abstract colour marks from an EU perspective. Through this examination it will also be established whether colours are worth protecting.</p><p>The essential function of trade marks is to indicate the origin of products. Signs that are capable of being represented graphically and capable of distinguishing goods and services from one undertaking from those of other undertakings can be registered as trade marks. Colours can fulfil these criteria in certain circumstances, however, colours can practically never have distinctive character per se. Instead, they must have acquired distinctive character through use. Since it is quite difficult to register colour marks, a colour mark proprietor should be prepared to have the validity of his trade mark challenged if he issues proceedings for infringement.</p><p>There are a few national cases from EU Member States that have concerned infringement of colour marks, and in all of these the plaintiff was successful in claiming infringement. Through the decisions in these cases, general legal principles and statements made in literature, the scope of protection of colour marks has been examined. Infringement of a colour mark occurs in three different situations: where there is likelihood of confusion, where there is double identity and where there is dilution of a trade mark with a reputation.</p><p>Some of the most important findings are that confusingly similar colours include adjacent shades, but in order to prove likelihood of confusion, the infringing colour must probably be perceived by the public as an indication of origin and other signs that appear together with the colour must probably be taken into account, which limits the scope of protection to some extent. However, since colour marks must almost always have acquired distinctive character through use, consumers are used to perceiving that colour as a trade mark in relation to those types of goods/services, and are therefore more likely to do so also when the colour is used by the third party. Furthermore, there have to be an individual assessment in each case in order to determine whether surrounding signs exclude a likelihood of confusion, where all factors should be considered, including the distinctiveness of the colour mark and how clear and prominent the other signs are.</p><p>In situations of double identity, the infringing sign does not have to be used as a trade mark, which is advantageous for colour mark owners. Furthermore, identical colours can possibly include other shades if they are so similar that the difference is barely perceptible in a direct comparison.</p><p>Colour marks can often qualify as trade marks with a reputation, since the assessment of whether trade marks have a reputation is similar to the assessment of whether trade marks have acquired distinctive character through use. Trade marks with a reputation has an extended protection meaning that if a third party uses a sign that is identical or similar to a trade mark with a reputation, and that use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark, then that use constitutes infringement. This applies both in relation to identical, similar and dissimilar products, however, it will probably only apply in relation to identical or similar products when it comes to colour marks, due to the extensive use of colours in the market. The extended protection could be relevant in particular in situations where likelihood of confusion cannot be proven, because the public does not perceive the infringing sign as a trade mark or because of surrounding prominent signs.</p><p>This examination shows that the scope of protection of colour marks is not great, it has some weaknesses. However, it is definitely not worthless either, which clearly shows in the fact that the plaintiffs were successful in claiming infringement in all of the infringement cases. By registering a colour as a trade mark, a company can to some extent stop others from using the same or similar colour, and it will also most likely have a discouraging effect. However, some carefulness should still be applied in relation to colour marks, since this is still a very new phenomenon and additional case law can take another direction. But considering how the situation looks today, colours are worth protecting as trade marks.</p>

碩士<br>國立臺北科技大學<br>智慧財產權研究所<br>107<br>The theme of the essay is a comparison among the trademark laws and trade dress protections of Taiwan, Japan, and the United States of America (the U.S.A.). With fast growing markets in recent years, the types of “trademark,” being unexpected by the lawmakers of the old days, are becoming more various than the original definition of “trademark” in the trademark law of each country. The member nations, for the purpose of resolving the issue, have legislated to protect non-traditional trademarks by distinguishing the new types of trademarks from “traditional trademark” under the articles set forth in multilateral agreements such as “Trade-Related Aspects of Intellectual Property Rights, TRIPs,” or under the conventions by which the member nations of World Intellectual Property Organization (WIPO) are obligated to abide. Such laws stipulate the objects of non-traditional trademark and the elements for registrations. Take “U.S.A. Trademark Law” (widely known as “Lanham Act”) as an example, the legal term “trademark” in the law refers to “any word, name, symbol, or device, or any combination…” being able to “identify and distinguish the services of one person from the services of others…” and a registerable trademarks must include the three elements below: “distinctiveness,” “non-functionality” and “secondary meaning.” Although the laws to protect non-traditional trademarks are widely stipulated in most of the countries, there are still many marks used in the markets, such as packaging of goods or a decoration of a store, not protected by the laws, especially those do not possess inherent distinctiveness, or have not yet acquired secondary meanings in market. When these marks are not defined within the scope of “trademark,” the owners may assert a “trade dress” right to prevent “dead copying” and “free riding,” the infringements upon a potentially valuable but non-registerable object, from other competitors. The scopes of “non-traditional trademark” and those of “trade dress” are differentiated among each nation; the two scopes sometimes overlap and are proven contradictory. Due to globalization and fast-developing industries today, trademark-owners have considerable needs to register trademarks among different countries. This essay specializes in the differences between the scopes of “non-traditional trademark” and those of “trade dress,” since different laws define how a mark should be protected in different countries. This essay also focuses on the analyses of practical cases of trademark laws and the protections of trade dress in Taiwan, Japan, and the U.S.A.. As the author of this research, I hope this work could function as a reference for the trademark owners who need a registration.

This diploma thesis deals with trade marks with reputation materia as a subgroup of trade marks connected with greater protection. First parts of this thesis are dedicated to an introduction to the trade mark law, in particular the inclusion of trade mark law in the legal system, principles governing this branch of law description and especially familiarization with the Czech trade mark law sources through an enumeration of the individual regulations, along with their significance. Parts three and four then are focused on the concept of trade mark with reputation and the specifics analysed also by comparison with the famous trade mark, because these two concepts are united in their development, which is also described. In the fifth part, the concept of luxury brands is described for the purposes of this thesis, where importance of reputation for luxury brands is covered through luxury brands characteristics analysis, and expanded in the context of individual court decisions, not only the European institutions. The final part of this thesis presents selected decisions relating to non-traditional trade marks as they constitute a higher level of protection, even though at different level, and thus they are related to the concept of reputation, especially in the context of trade mark law trends that will be...

The very label ‘non-traditional’ serves as a reminder that trade mark rules have developed around a traditional core of word and device marks. The likelihood of confusion test has in turn been influenced by this history. This chapter describes the manner in which a test developed around a template of traditional marks can be extended to disputes involving colours, shapes, and other less conventional marks. Such disputes inevitably raise novel issues. For instance, when may the defendant’s use of a colour on their products be construed as trade mark use, instead of merely incidental or decorative use? And how are courts to assess the similarity of colours, bearing in mind that consumers are deemed to have imperfect recollection? More pertinently, can such consumers distinguish between two shades of the same colour? Can two product shapes be sufficiently visually similar to satisfy the test, despite prominent and dissimilar word marks also being present on the products?

This chapter makes the case for joined-up thinking when approaching non-traditional signs in trade mark law. Trade mark registration has moved from up-front exclusions for certain categories of signs (no shapes, no colours) toward incremental acceptance. However the policy concerns generated by the grant of legal monopolies in such signs remain equally relevant today. The grant of an abstract color mark to one trader closes off a part of the color spectrum to others. Can we therefore allow such signs in to the system while successfully managing the tensions this generates? The approach advocated here is that we should correlate the mark as characterized at the time of registration—agreeably modest in its scope and ambitions—with the mark as deployed in an enforcement context, where it otherwise tends to be read more generously. The doctrine of prosecution history estoppel in patent law may have valuable lessons for trademark law.

This chapter examines the definition of a registrable trade mark, absolute grounds for refusal or invalidation of a registered trade mark, the extent to which objections can be overcome through proof of distinctiveness acquired through use and the rules on revocation of a registered trade mark, both at national and EU levels. It examines these issues looking at many different kinds of trade mark, from traditional work marks and logos to so-called ‘non-conventional’ trade marks such as three-dimensional product shapes, sounds, smells, colours, and ‘position’ marks. The chapter reflects evolving legislation at an EU level (particularly the EU’s 2015 trade mark reform package), a rich base of case law, and links to the the theroetical debates seen in Chapter 13.

Non-traditional marks offer enhanced possibilities for the cumulation of copyright and trademark rights. With the recognition of shape, sound, and motion marks, new areas of overlap emerge that affect traditional work categories, in particular sculpture and plastic art, musical compositions, and audiovisual creations. Discussing the corrosive effect of this growing area of overlap on cultural follow-on innovation, the chapter yields the insight that it is advisable to recalibrate the copyright/trademark interface. Instead of relying on distinctiveness as a gatekeeper and volatile infringement criteria and defenses within trademark law, more robust mechanisms are necessary to prevent the acquisition of trademark rights to cultural signs from the outset—grounds for refusal that apply across all goods and services and cannot be overcome through use in trade. The chapter explores the room for the development of these more robust mechanisms. It brings a refusal based on public order or morality into focus.

This chapter provides an overview of rights in data and information. It discusses the impetus for the creation of ‘rights’ in information, which is found in the financial investment in the gathering and the organization of the data and information. This area is entirely about the protection of investment against the ease of copying. The nature of what emerges is therefore also radically different from the traditional IP rights. Traditional IP rights such as patents, trade marks, and copyright are exclusionary rights, but they are transferable in nature. One can assign these rights. But in the area of ‘rights’ in information, non-transferability is the norm.

The objective of information system security management is information assurance: to maintain confidentiality (privacy), integrity, and availability of information resources for authorized organizational end users. User authentication is a foundation procedure in the overall pursuit of these objectives, and password procedures have historically been the primary method of user authentication. There is an inverse relationship between the level of security provided by a password procedure and ease of recall for users. The longer the password and the more variability in its characters, the higher the level of security provided by such a password (because they are more difficult to violate or “crack”). However, such passwords tend to be more difficult for end users to remember, particularly when the password does not spell a recognizable word (or includes non-alphanumeric characters such as punctuation marks or other symbols). Conversely, when end users select their own more easily remembered passwords, the passwords may also be easier to crack. This study presents a new approach to entering passwords, which combines a high level of security with easy recall for the end user. The Check-Off Password System (COPS) is more secure than self-selected passwords as well as high-protection, assigned-password procedures. The present study investigates trade-offs between using COPS and three traditional password procedures, and provides a preliminary assessment of the efficacy of COPS. The study offers evidence that COPS is a valid alternative to current user authentication systems. End users perceive all password procedures tested to have equal usefulness, but the perceived ease of use of COPS passwords equals that of an established high-security password, and the new interface does not negatively affect user performance compared with that high-security password. Further research will be conducted to investigate long-term benefits.

The objective of information system security management is information assurance: to maintain confidentiality (privacy), integrity, and availability of information resources for authorized organizational end users. User authentication is a foundation procedure in the overall pursuit of these objectives, and password procedures have historically been the primary method of user authentication. There is an inverse relationship between the level of security provided by a password procedure and ease of recall for users. The longer the password and the more variability in its characters, the higher the level of security provided by such a password (because they are more difficult to violate or “crack”). However, such passwords tend to be more difficult for end users to remember, particularly when the password does not spell a recognizable word (or includes non-alphanumeric characters such as punctuation marks or other symbols). Conversely, when end users select their own more easily remembered passwords, the passwords may also be easier to crack. This study presents a new approach to entering passwords, which combines a high level of security with easy recall for the end user. The Check-Off Password System (COPS) is more secure than self-selected passwords as well as high-protection, assigned-password procedures. The present study investigates trade-offs between using COPS and three traditional password procedures, and provides a preliminary assessment of the efficacy of COPS. The study offers evidence that COPS is a valid alternative to current user authentication systems. End users perceive all password procedures tested to have equal usefulness, but the perceived ease of use of COPS passwords equals that of an established high-security password, and the new interface does not negatively affect user performance compared with that high-security password. Further research will be conducted to investigate long-term benefits.

The United States is the second largest citrus producer in the world. Florida and California are the two major producing states. While oranges from California are mainly used for fresh fruit consumption, more than 90% of oranges produced in Florida are processed to juice (FAO 2008). Consumers demand high quality and convenient products with natural flavor and taste, and appreciate the “fresh” perception of minimally processed juices. They also look for safe, natural, and healthy products without additives and preservatives. New processing technologies promise to meet all these demands without compromising food safety. Commercial orange juice is thermally processed to inactivate pectinesterase (PE) and spoilage organisms. Active PE causes clarification of orange juice by cloud loss, which is considered a quality defect (Boff et al. 2003). Thermal processing can be detrimental to the organoleptic and nutritional qualities of the juice (Sloan 1995), so the development of non-thermal technologies (Barbosa-Canovas et al. 1998) is desirable in the citrus juice industry. Dense phase carbon dioxide (DPCD) is a non-thermal technology that can inactivate certain micro-organisms and enzymes at temperatures low enough to avoid the thermal effects of traditional pasteurization. This technology relies on the chemical effect of CO2 on micro-organisms and enzymes. DPCD pasteurization technology is commercially available. Most of the commercialization efforts so far have been from Praxair Inc. (Burr Ridge, IL). Based on technology licensed from the University of Florida (Balaban et al. 1988, 1998), Praxair developed a continuous system which uses the DPCD process as a non-thermal alternative to thermal pasteurization (Connery et al. 2005). This system has been commercialized under the Trade Mark “Better Than Fresh (BTF).” To date, Praxair has constructed four mobile BTF units for processing about 1.5 liters per minute for demonstration purposes. In addition, a commercial scale unit of 150 liters per minute was also constructed (Connery et al. 2005) and tested at an orange juice processing plant in Florida. There are other commercialization efforts. The excellent taste of the juice processed with this new technology was demonstrated in three independent sensory panels that compared juice treated with this system to that of fresh squeezed juice. In all the tests, no difference could be detected. It is important that CO2 is completely saturated in the juice if DPCD is to be successful. Saturation (equilibrium solubility) depends on the pressure, temperature, and composition of the juice. Until recently, the exact amount of CO2 to be used in DPCD processing was unknown since solubility data was unavailable at different pressures, temperatures, and juice compositions, and an excess amount was used. To optimize the use of CO2 in this non-thermal process, new equipment has been developed to measure the solubility of CO2 in liquid systems and juices. The objective of this paper is to present a general review of the applications of DPCD to citrus juices and to introduce the use of new equipment developed at the University of Florida to determine the solubility of CO2 in citrus juices. Paper published with permission.