Taking a break for a moment from US partisan politics (at least while gathering the ingredients for this platter), the last few weeks have seen some significant IP decisions, mostly overseas. But it's not 1930 any more: Especially with intellectual property, both "legal precedent" and "legal reasoning" for IP (which is essentially borderless anyway) squeeze their way past all borders — all too often without adequate (or honest) inspection at the border.
I am not suggesting — yet! — that Perry Rhodan is an undocumented immigrant. Neither, however, am I ruling out such consideration at a later date… especially if the West Germany of 1961 might well be called a "shithole country." (I did say "for a moment.")
- Since this is a platter of link sausages, let's start with whether the shape of a sausage is an enforceable-to-exclude element of a registered mark (in Europe, anyway). This just seems like one of those amusing bits of overreaching, but…
- …that seems almost like a standard business strategy these days, whether in Europe (and the UK) or in the US. Memories of discussions on this blawg of limp cockiness about an IP-related mark are more than "AI" hallucinations.
- That's about exploitation of IP, though. Before one gets to exploitation, one must produce the IP in the first place. This can be rather squicky in concept, and the result of a team effort that often involves dubious claims of "ownership" of the output. This last item has interesting implications for the enforceability of the US copyright law work-made-for-hire enforced statutory transfer in Europe (a doctrine that was always a bad idea anyway, and rested on the necessary condition that Congress has the right and authority to redefine a word in its relevant grant of power to mean nearly the opposite of its ordinary public meaning, either in the eighteenth century or now).
- Determining the kind of IP that's at issue in a particular dispute (especially once the lawyers get involved (third paragraph)!) is at least equally frustrating — and can be outcome-determinative. Consider, for a moment, whether this dispute would have reached this result under either trademark or more-generic "unfair competition" law. The key point to remember is that the natural-person creator is seldom, or at least seldom accurately, thinking about "the kind of law that will apply when I'm done" during the throes of creation… and that's before considering any "statutorily-enforced transfers of ownership"!
- After production, IP must be packaged for the consumer — especially when it's only words, words, and more words. I have always found CMS helpful, but not definitive, especially when it reaches outside its core competency in the humanities and nonnumeric social sciences. For example, for all of the foolishness of "signal priority" and "canonical abbreviations" found in The Bluebook (for American legal writing) — foolishness that never made sense, let alone a century later when about a third of the canonical abbreviations are entirely new and substantively overrule earlier but unchanged ones, not to mention show utter disdain for conflict-of-laws analysis of the actual weight of some abbreviations — CMS-compliant citations have always discounted essential information for legal materials (like full-and-adequate identification of which court issued many opinions). Bluntly, there cannot be an effective "uniform system of citation" that reaches all kinds of citations and all kinds of writing… and that's before getting into the distinction between "grammar in the real world" and "grammar in Mrs Grundy's sixth-grade classroom" underlying much of CMS's proscriptiveness. (Can you spot the seven items in this sausage that CMS would characterize as "improper" that actual real people and writers would characterize as "style for teh Internets" that actually has a substantive basis?)
Phew! That's exhausting if not necessarily exhaustive, to intentionally and ambiguously overload two terms of art that are themselves less than artful: Those initial rights are not truly "exhausted" if the parties can legitimately argue for years (with considerable attorneys' fees to be paid by someone) about them without regard to any disputed facts.