Althaf Marsoof
Nanyang Technological University, Nanyang Business School, Faculty Member
- Welcome to my page. I am an Associate Professor at the Nanyang Business School (NBS), Nanyang Technological Universit... moreWelcome to my page. I am an Associate Professor at the Nanyang Business School (NBS), Nanyang Technological University in Singapore. Before joining the NBS, I was at the Dickson Poon School of Law, King's College London, where I completed my doctoral research on internet intermediary liability for trademark infringements. Prior to moving into full-time academia, I was a State Counsel attached to the Attorney General's Department of Sri Lanka, where I had the opportunity to represent the interests of the Sri Lankan Government and public corporations in and outside court. I currently teach Business and Intellectual Property Law at undergraduate and postgraduate level at the NBS, while focusing on research in the areas of Intellectual Property and Technology Law.edit
This book is a reflection on domestic intellectual property law-making from a developing country’s perspective. It is the first of its kind, as it focuses on a South Asian jurisdiction, namely Sri Lanka–a country that shares economic,... more
This book is a reflection on domestic intellectual property law-making from a developing country’s perspective. It is the first of its kind, as it focuses on a South Asian jurisdiction, namely Sri Lanka–a country that shares economic, cultural and climatic similarities with many other Asian nations but whose intellectual property laws have been less explored. The aim of this book is to fill that void and to address the discrepancies, gaps and flaws in the national intellectual property legal framework. In doing so, the book considers Sri Lanka’s obligations under TRIPS and other related intellectual property treaties to which the country is a party. The book also examines approaches adopted by developing countries in the region and beyond, as well as other more developed nations, in calibrating Sri Lanka’s domestic intellectual property laws to better address the country’s domestic needs and national interests. The approach adopted in this book is of relevance, more generally, to scholars, policymakers and students who are keen on exploring the extent to which domestic intellectual property legislation complies with international intellectual property norms and standards and, more importantly, makes use of the flexibilities under international law in addressing domestic needs and national interests.
Research Interests:
Despite the apparent advantages of the internet, there is little debate that it facilitates intellectual property infringements, including infringements of trade mark rights. Infringers not only remain hidden by the anonymity the internet... more
Despite the apparent advantages of the internet, there is little debate that it facilitates intellectual property infringements, including infringements of trade mark rights. Infringers not only remain hidden by the anonymity the internet provides but also take advantage of its increasing reach and the associated challenges with regard to cross-border enforcement of rights. These factors, among others, have rendered the internet a growing source of counterfeit and other infringing products. It has, therefore, become necessary for right holders to shift their focus from individual infringers to internet intermediaries, such as Internet Service Providers (ISPs), hosts and navigation providers, which are responsible in numerous ways for making content promoting infringements available to internet users. In light of these developments, this book conducts a comprehensive analysis of the liability of such intermediaries for trade mark infringements and considers the associated issues and challenges in the diverging approaches under which liability may be imposed. At present, however, neither UK trade mark law nor English common-law principles relating to accessorial liability provide a basis to hold internet intermediaries liable for trade mark infringements. As such, this book considers approaches adopted in some of the Continental European countries and the US in order to propose reforms aimed at addressing gaps in the existing legal framework. This book also examines alternative remedies, such as notice and takedown and injunctions, and discusses the associated shortcomings of each of these remedies.
Research Interests:
A country’s patent system plays a significant role in the progress it makes in relation to technological innovations. Yet, from a developing country’s perspective it is necessary to ensure that the grant of patent rights promotes local... more
A country’s patent system plays a significant role in the progress it makes in relation to technological innovations. Yet, from a developing country’s perspective it is necessary to ensure that the grant of patent rights promotes local interests, and in particular the transfer of technology to foster domestic industries and promote local innovations. However, where the grant of a patent results in the patented product being solely imported into the territory of a country in which patent rights subsist, there is little benefit for the patent granting country. It is for this reason that the incorporation of a local working requirement–compelling the local manufacture of a patented product–for the grant and maintenance of patent rights could be beneficial to a patent granting country. Yet adopting such an approach to formulate domestic patent legislation is not without controversy. Although Article 5A(2) of the Paris Convention for the Protection of Industrial Property 1883 (Paris Convention) provides that a compulsory license may be issued where there is a failure to work a patent, the Paris Convention permitting the term ‘working’ to be defined as requiring local manufacture of a patented product, Article 27:1 of the Trade Related aspects of Intellectual Property Rights Agreement (TRIPS) provides that patent rights must be made available without discrimination as to the place where a patented product is produced. This chapter explores the tension between Article 27:1 of TRIPS and Article 5A(2) of the Paris Convention and suggests how TRIPS flexibilities may be used in favour of imposing a local working requirement under domestic patent law, while also considering the approaches adopted in relation to local working requirements in two South Asian jurisdictions–namely, India and Sri Lanka.
Research Interests:
Although Sri Lanka is a nation with a rich and deep-rooted history premised upon the teachings of the Buddhist traditions, it has adopted a much less conservative attitude towards the consumption, sale and promotion of alcohol and tobacco... more
Although Sri Lanka is a nation with a rich and deep-rooted history premised upon the teachings of the Buddhist traditions, it has adopted a much less conservative attitude towards the consumption, sale and promotion of alcohol and tobacco products, until recently. While there remains an express prohibition in Buddhist scripture in respect of the consumption of alcohol, the law merely prohibits the sale of alcohol products on Full Moon Poya Days, a key Buddhist public holiday in Sri Lanka. On the other hand, no such restriction applies to the sale of tobacco, which probably is more harmful to human health, although entails a lesser degree of moral objection.
It was not until recently that the National Authority on Tobacco and Alcohol Act 2006 (the NATA Act) was enacted which to a significant extent circumscribed the freedom of alcohol and tobacco companies operating in Sri Lanka. Given the impact that the NATA Act has on alcohol and tobacco companies, it was not surprising that the said law’s constitutionality was challenged at the Bill stage. Of course, it was not until 2012 that the government of Sri Lanka brought in further controls in respect of the tobacco industry through an attempt to introduce pictorial health warnings to be displayed on tobacco packs, which once again was subject to a series of lawsuits, ultimately giving rise to an amendment to the NATA Act itself being brought almost immediately after the election of a new president in January 2015 – who coincidently was the minister of health under the former government.
This chapter seeks to contribute to the ongoing debate on intellectual property and public health, but with reflections on the Sri Lankan perspective. The chapter specifically focuses on the latest developments that have taken place in Sri Lanka in respect of tobacco regulation and considers the reaction of the Sri Lankan courts when the legality and constitutionality of these regulatory measures were challenged. The chapter then proceeds to prophesize whether a plain packaging regime is consistent with the Sri Lankan Constitution and then proposes a potential compromise – the removable trademark – in the event plain packaging is determined unconstitutional.
It was not until recently that the National Authority on Tobacco and Alcohol Act 2006 (the NATA Act) was enacted which to a significant extent circumscribed the freedom of alcohol and tobacco companies operating in Sri Lanka. Given the impact that the NATA Act has on alcohol and tobacco companies, it was not surprising that the said law’s constitutionality was challenged at the Bill stage. Of course, it was not until 2012 that the government of Sri Lanka brought in further controls in respect of the tobacco industry through an attempt to introduce pictorial health warnings to be displayed on tobacco packs, which once again was subject to a series of lawsuits, ultimately giving rise to an amendment to the NATA Act itself being brought almost immediately after the election of a new president in January 2015 – who coincidently was the minister of health under the former government.
This chapter seeks to contribute to the ongoing debate on intellectual property and public health, but with reflections on the Sri Lankan perspective. The chapter specifically focuses on the latest developments that have taken place in Sri Lanka in respect of tobacco regulation and considers the reaction of the Sri Lankan courts when the legality and constitutionality of these regulatory measures were challenged. The chapter then proceeds to prophesize whether a plain packaging regime is consistent with the Sri Lankan Constitution and then proposes a potential compromise – the removable trademark – in the event plain packaging is determined unconstitutional.
Research Interests:
This paper envisions a future in which humans begin to entrust interconnected and intelligent devices and machines with the power to make purchasing decisions on their behalf. Artificial Intelligence (AI), together with the Internet of... more
This paper envisions a future in which humans begin to entrust interconnected and intelligent devices and machines with the power to make purchasing decisions on their behalf. Artificial Intelligence (AI), together with the Internet of Things (IoT) and blockchain technology, will likely make this possible. What might be the role of trademarks and the law governing their protection in such a future? This paper responds to this question by considering how the use of AI, IoT, and blockchain technology in the retail space will impact the foundational concepts underpinning trademark law. The discussion highlights the difficulty of shifting trademark law away from its human-centric focus, where core doctrines and principles revolve around human interaction and perceptions, towards a system capable of adapting to a future where devices and machines interact with trademarks. Perhaps the time is ripe for legislative innovation in the field of trademarks.
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This article critically evaluates the Intellectual Property (Amendment) Act 2022, which introduced a sui generis registration system for Geographical Indications (GIs) in Sri Lanka. The analysis begins by examining the pre-2022 law and... more
This article critically evaluates the Intellectual Property (Amendment) Act 2022, which introduced a sui generis registration system for Geographical Indications (GIs) in Sri Lanka. The analysis begins by examining the pre-2022 law and the factors leading to the introduction of the GI registration system. The paper then outlines the key features of the new system, highlighting its strengths and shortcomings through a critical analysis. While the 2022 amendment brings positive developments and enhanced protection for registered GIs, it also reveals certain ambiguities and unaddressed issues, which could impair the effective operation of the new system.
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Online service providers, and even governments, have increasingly relied on Artificial Intelligence (“AI”) to regulate content on the internet. In some jurisdictions, the law has incentivised, if not obligated, service providers to adopt... more
Online service providers, and even governments, have increasingly relied on Artificial Intelligence (“AI”) to
regulate content on the internet. In some jurisdictions, the law has incentivised, if not obligated, service providers to adopt measures to detect, track, and remove objectionable content such as terrorist propaganda. Consequently, service providers are being pushed to use AI to moderate online content. However, content-filtering AI systems are subject to limitations that affect their accuracy and transparency. These limitations open the possibility for legitimate content to be removed and objectionable content to remain online. Such an outcome could endanger human well-being and the exercise of our human rights. In view of these challenges, we argue that the design and use of content-filtering AI systems should be regulated. AI ethics principles such as transparency, explainability, fairness, and human-centricity should guide such regulatory efforts.
regulate content on the internet. In some jurisdictions, the law has incentivised, if not obligated, service providers to adopt measures to detect, track, and remove objectionable content such as terrorist propaganda. Consequently, service providers are being pushed to use AI to moderate online content. However, content-filtering AI systems are subject to limitations that affect their accuracy and transparency. These limitations open the possibility for legitimate content to be removed and objectionable content to remain online. Such an outcome could endanger human well-being and the exercise of our human rights. In view of these challenges, we argue that the design and use of content-filtering AI systems should be regulated. AI ethics principles such as transparency, explainability, fairness, and human-centricity should guide such regulatory efforts.
Research Interests:
ICANN’s New gTLDs Program has liberalized the internet’s domain namespace. By permitting generic Top-Level Domains (gTLDs), which were previously limited to a specified set of characters (such as ‘.com’), to comprise any alphanumeric... more
ICANN’s New gTLDs Program has liberalized the internet’s domain namespace. By permitting generic Top-Level Domains (gTLDs), which were previously limited to a specified set of characters (such as ‘.com’), to comprise any alphanumeric combination, new gTLDs have not only created new businesses opportunities but also transformed how businesses present themselves on the internet. But with this development, new challenges have emerged with respect to the protection of trademark rights. In light of this, it is necessary to consider the extent to which ICANN’s dispute settlement mechanisms that apply to new gTLDs are aligned with trademark law and policy. An alignment between the two would indicate that trademarks are sufficiently protected while also ensuring that third-party rights and interests, such as free speech and fair competition, are equally safeguarded.
The article entitled “Trademarks, Free Speech, and Fair Competition in a World of New Generic Top-Level Domains,” authored by Alpana Roy & Althaf Marsoof is now published in the September-October, 2021 (Vol. 111, No. 5) issue of the International Trademark Association (INTA)'s Trademark Reporter®
The article entitled “Trademarks, Free Speech, and Fair Competition in a World of New Generic Top-Level Domains,” authored by Alpana Roy & Althaf Marsoof is now published in the September-October, 2021 (Vol. 111, No. 5) issue of the International Trademark Association (INTA)'s Trademark Reporter®
Research Interests:
In early 2020, the Government of Sri Lanka decided that all bodies of individuals who had (or suspected to have) died of COVID-19 shall be disposed of by cremation alone. Although this decision appears to be neutral and does not give rise... more
In early 2020, the Government of Sri Lanka decided that all bodies of individuals who had (or suspected to have) died of COVID-19 shall be disposed of by cremation alone. Although this decision appears to be neutral and does not give rise to de jure discrimination, as a matter of fact, it has significantly impacted the Muslim community of Sri Lanka. This is so because they firmly believe in the need to give their dead a dignified and decent burialcremation being regarded as a repugnant practice amounting to a desecration of the human body. As such, the Sri Lankan Government's decision to adopt a cremation only policy interferes with the right of all Sri Lankan Muslims to manifest their religion or belief as guaranteed by the 1978 Constitution of Sri Lanka. Despite there being no scientific evidence to suggest that the burial of COVID-19 victims could give rise to contamination of the surroundings and thereby cause the spread of the virus, the Government of Sri Lanka continued with the policy for almost a whole year. Thereafter, due to international pressure, the Sri Lankan Government decided to allow burials but in a very restrictive manner. The objective of this paper is to consider the extent to which the aforesaid decisions of the Sri Lankan Government are consistent with the fundamental rights framework of the country's constitution.
Research Interests:
Geographical Indications (GIs) come with the promise of socio-economic development for local communities. But more often than not, GIs in the developing world have not been able to deliver on that promise. However, it is unwise to place... more
Geographical Indications (GIs) come with the promise of socio-economic development for local communities. But more often than not, GIs in the developing world have not been able to deliver on that promise. However, it is unwise to place the entire blame on GIs for this shortcoming. Instead, the problem lies in the inequitable distribution of premiums generated by GIs within supply/value chains. For that reason, we looked outside the GIs system for inspiration and were drawn towards Corporate Social Responsibility (CSR) and fair-trade. Both the CSR and fair-trade examples we considered share common standards that aim to guarantee fair wages/prices, access to education and training, healthcare and safe working conditions, and human rights to stakeholders involved across supply/value chains. Our plea is for these common standards to be infused into the GIs system to benefit local communities. We have recommended a strategy to achieve that objective.
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Keyword advertising, an advertising technique that targets users of search engines, is popular around the world. It has also attracted a certain degree of controversy in the world of trademarks. This article focuses on the legality of... more
Keyword advertising, an advertising technique that targets users of search engines, is popular around the world. It has also attracted a certain degree of controversy in the world of trademarks. This article focuses on the legality of this advertising practice under trademark law applicable in Sri Lanka. The focus on Sri Lanka is motivated by three factors. First, the ongoing COVID-19 crisis has forced businesses to shift online, and for those already with an online presence to further expand. Secondly, and as a natural consequence, businesses have had to invest more in advertising on the internet to become more visible on search engines. To that end, some businesses have embraced the practice of keyword advertising and have employed it in controversial, if not unlawful, ways–giving rise to an emerging keyword war. Thirdly, the health crisis has almost instantly compelled Sri Lankan consumers to rely heavily on online platforms to purchase essential goods and services. As such, consumers are now increasingly exposed to search engines and, in turn, the practice of keyword advertising. For these reasons, determining the legality of keyword advertising, as an advertising practice, in the Sri Lankan context is a matter of public importance.
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Lord Justice Denning’s judgement in Entores Ltd v Miles Far East Corp (1955) supports the proposition that in cases of instantaneous communications, a contract is formed only when the acceptance is ‘received’ by the offeror. However,... more
Lord Justice Denning’s judgement in Entores Ltd v Miles Far East Corp (1955) supports the proposition that in cases of instantaneous communications, a contract is formed only when the acceptance is ‘received’ by the offeror. However, based on the language of Denning LJ, it is also clear that whether an acceptance was received must be objectively assessed. Thus, where an offeree reasonably believes that the acceptance message was received by the offeror, a contract may come into existence even in circumstances where the latter is unaware of the acceptance, provided that the lack of communication of the acceptance to the offeror is brought about by his own fault. Bizarre as it may sound, it is not impossible for such an eventuality to occur where parties resort to electronic means to contract. The purpose of this paper is to rationalise the interplay between this unique, yet possible, eventuality under the common law of contracts and the rules set out by the United Nations Commission on International Trade Law (‘UNCITRAL’) pertaining to the dispatch and receipt of electronic communications.
Art 15(2) of the 1996 UNCITRAL Model Law on Electronic Commerce (‘the Model Law’) provides that a data message is received when the message enters the addressee’s designated information system. Art 10(2) of the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts (‘the Convention’), prepared by UNCITRAL to supplment the Model Law, adds that an electronic communication is received when it is capable of being retrieved by the addressee at the designated electronic address–‘electronic address’ being used synonymously with ‘information system’. As with the common law, the Convention imposes an objective standard in assessing whether an electronic communication is received by presuming that a communication is capable of being retrieved when it reaches the designated electronic address. Presumptions, however, may be rebutted. Thus, in the event an electronic acceptance is permanently deleted upon reaching the offeror’s electronic address, the presumption as to receipt may be rebutted in terms of the UNCITRAL rules. Yet, if it is established that the acceptance was deleted owing to the offeror’s fault, there is still a possibility that a contract is made.
While Denning LJ’s ‘fault-based’ logic is sound in holding a negligent offeror bound by an acceptance of his offer, even where the offeror had no actual, or constructive, knowledge of the acceptance, the supposition that a contract is formed without the electronic acceptance being received defies trite principles of contract law. Accordingly, this paper posits that there is an anomaly between UNCITRAL’s rules (irretreivable, thus no receipt) and the common law (fault, thus a contract). At a broader level, this paper proposes that UNCITRAL could apply Denning LJ’s logic of constructing a contract on the basis of the addressee’s (i.e., offeror’s) fault, which equitably allocates the risk of loss of electronic communication, in setting out the rules that determine when an electronic communication is capable of being retrieved, thus received.
Art 15(2) of the 1996 UNCITRAL Model Law on Electronic Commerce (‘the Model Law’) provides that a data message is received when the message enters the addressee’s designated information system. Art 10(2) of the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts (‘the Convention’), prepared by UNCITRAL to supplment the Model Law, adds that an electronic communication is received when it is capable of being retrieved by the addressee at the designated electronic address–‘electronic address’ being used synonymously with ‘information system’. As with the common law, the Convention imposes an objective standard in assessing whether an electronic communication is received by presuming that a communication is capable of being retrieved when it reaches the designated electronic address. Presumptions, however, may be rebutted. Thus, in the event an electronic acceptance is permanently deleted upon reaching the offeror’s electronic address, the presumption as to receipt may be rebutted in terms of the UNCITRAL rules. Yet, if it is established that the acceptance was deleted owing to the offeror’s fault, there is still a possibility that a contract is made.
While Denning LJ’s ‘fault-based’ logic is sound in holding a negligent offeror bound by an acceptance of his offer, even where the offeror had no actual, or constructive, knowledge of the acceptance, the supposition that a contract is formed without the electronic acceptance being received defies trite principles of contract law. Accordingly, this paper posits that there is an anomaly between UNCITRAL’s rules (irretreivable, thus no receipt) and the common law (fault, thus a contract). At a broader level, this paper proposes that UNCITRAL could apply Denning LJ’s logic of constructing a contract on the basis of the addressee’s (i.e., offeror’s) fault, which equitably allocates the risk of loss of electronic communication, in setting out the rules that determine when an electronic communication is capable of being retrieved, thus received.
Research Interests:
The Government of Singapore recently introduced a Bill to amend the tobacco control law with a view of prescribing plain packaging for tobacco products. The amendment was passed into law on 11 February 2019, with an expected... more
The Government of Singapore recently introduced a Bill to amend the tobacco control law with a view of prescribing plain packaging for tobacco products. The amendment was passed into law on 11 February 2019, with an expected implementation date in 2020. The consequence, of course, is a complete prohibition on the display of any trade marks, symbols, promotional images or logos on tobacco packs. In this article, we consider the constitutionality of this legislative measure, given that trade marks are, in essence, commercial expressions that attract constitutional free speech rights. Given that the constitutionality analysis requires an assessment of whether plain packaging is necessary or expedient in the interest of public order, which has been broadly defined to include the wider and larger interests of the country, we also conducted an empirical study to determine the effectiveness of plain packaging. Our study focused on the impact of package plainness and brand familiarity on smokers’ package evaluation and quitting intentions.
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Without intermediaries that provide access to, host and link content, the internet will not be the vibrant place it is today. Yet with the rising number of online copyright infringements, right holders have increasingly shifted their... more
Without intermediaries that provide access to, host and link content, the internet will not be the vibrant place it is today. Yet with the rising number of online copyright infringements, right holders have increasingly shifted their focus to intermediaries in their efforts to curb infringements. This has led to internet intermediaries being increasingly exposed to copyright liability. In light of this, safe harbours that provide certain classes of intermediaries with conditional immunity play an important role in maintaining a healthy balance between the interests of right holders and third parties. In the copyright context, the Digital Millennium Copyright Act 1998 (DMCA) enacted in the United States was the first instance where such a safe harbour was afforded to internet intermediaries. During the two decades of the DMCA’s operation, it has been used as a blueprint to shape safe harbours in other jurisdictions. This article focusses on two such jurisdictions–namely, Singapore and India. This article provides a comparative and in-depth analysis of the safe harbour frameworks in the two jurisdictions, while mapping out how they compare with the DMCA. In the process, the article highlights a number of features in the DMCA that have been remodelled in Singapore and India.
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This article critically evaluates the current approach adopted in Australia in dealing with online content that either infringes, or facilitates the infringement of, copyright. It first considers the recent decision of the Australian... more
This article critically evaluates the current approach adopted in Australia in dealing with online content that either infringes, or facilitates the infringement of, copyright. It first considers the recent decision of the Australian Federal Court in Roadshow Films v Telstra, which resulted in an injunction being issued against some of the major Australian ISPs requiring them to block access to a number of online locations that infringed copyright. The discussion focuses on the issue of circumvention and compares the approach favoured by the High Court of England and Wales in tacking this problem. The article next considers the practice of notice and takedown (N & T). A consideration of this extrajudicial means of copyright enforcement is inevitable because the blocking injunction (the basis for which is derived from s.115A of the Copyright Act 1968 (Cth)) is limited to infringing online locations outside Australia. As such, the practice of N & T is crucial when the source of infringement is within the jurisdiction. The discussion on N & T suggests that an important safeguard protecting the interests of authors of legitimate online content—i.e. the counter-notice and restore mechanism—does not apply unless the content was hosted by a service provider that was also a "carriage service provider". Yet, most content online are hosted by service providers that are not carriage service providers.
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This article represents a modest attempt to disentangle the complex application of copyright law to the use of Virtual Private Networks (VPNs) that enable users to circumvent geo-blocking measures that are put into place by copyright... more
This article represents a modest attempt to disentangle the complex application of copyright law to the use of Virtual Private Networks (VPNs) that enable users to circumvent geo-blocking measures that are put into place by copyright owners or their licensees in order to give effect to territorial copyright licensing arrangements. The article first sets out some of the recent trends and developments concerning geo-blocking and VPNs and then proceeds to consider the legality of the use of VPNs to bypass geo-blocking measures–i.e. whether this practice amounts to an infringement of copyright and/or a circumvention of a Technological Protection Measure. The discussion is carried out in a comparative fashion by considering the application of copyright laws in the European Union, Singapore, and Australia in the context of geo-blocking and VPNs.
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Since October 2013, the global body which regulates the internet–the Internet Corporation for Assigned Names and Numbers (ICANN), has introduced, or ‘delegated’, into the internet 1230 new generic top-level domain names or ‘new gTLDs’.... more
Since October 2013, the global body which regulates the internet–the Internet Corporation for Assigned Names and Numbers (ICANN), has introduced, or ‘delegated’, into the internet 1230 new generic top-level domain names or ‘new gTLDs’. This relatively new development has effectively heralded a new phase for the internet–whereby previously locked-up domain name territory is now being made available for corporations and organizations. With the maturing of the internet, domain names - and indeed, domain names as a new legal field, has attracted significant academic commentary. However, there has been almost no academic analysis into the new gTLDs to-date. The purpose of this article is to redress that deficiency and provide a thorough investigation into ICANN’s new gTLD programme, including its distinctive features, the benefits and challenges of acquiring new gTLDs, and the dispute settlement procedures in place for this newest entry into the domain name space.
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Recent reports published in Sri Lankan newspapers suggest that local industries (particularly cinnamon producers) have raised concerns about the lack of a registration system for geographical indications (GIs) in Sri Lanka. They have even... more
Recent reports published in Sri Lankan newspapers suggest that local industries (particularly cinnamon producers) have raised concerns about the lack of a registration system for geographical indications (GIs) in Sri Lanka. They have even gone on to suggest that the failure on the part of Sri Lankan authorities and stakeholders to obtain protection of Sri Lankan GIs in other jurisdictions (and in particular the EU) is attributable to the lack of a domestic mechanism for the registration of GIs. Both local industries and academics have made reference to the Indian approach on the registration and protection of GIs and have called for the implementation of a similar system in Sri Lanka. It was in order to address this specific concern and plea that the Cabinet of Ministers by a decision made in October 2016 pledged to amend the Intellectual Property Act 2003 (IP Act), which governs the
protection and enforcement of Intellectual Property Rights in Sri Lanka. Yet, contrary to expectations and adopting an approach that is much less comprehensive than the existing legislative approach in India, the proposed amendment to the IP Act merely
introduces a single subsection to s.161 that deals with the protection of GIs. Against this backdrop, this article deals with the following points. First, it considers whether the current regime for the protection of GIs in Sri Lanka is sufficient in order to obtain
the necessary legal protection for Sri Lankan GIs both locally and globally. Secondly, the article critically assesses the new amendment to the IP Act, comparing it with the Indian approach, in considering its practicality and utility. It is argued that the new amendment adds nothing to existing law.
protection and enforcement of Intellectual Property Rights in Sri Lanka. Yet, contrary to expectations and adopting an approach that is much less comprehensive than the existing legislative approach in India, the proposed amendment to the IP Act merely
introduces a single subsection to s.161 that deals with the protection of GIs. Against this backdrop, this article deals with the following points. First, it considers whether the current regime for the protection of GIs in Sri Lanka is sufficient in order to obtain
the necessary legal protection for Sri Lankan GIs both locally and globally. Secondly, the article critically assesses the new amendment to the IP Act, comparing it with the Indian approach, in considering its practicality and utility. It is argued that the new amendment adds nothing to existing law.
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The internet, in view of its expanse and the anonymity it offers to users, has posed significant challenges in the enforcement of Intellectual Property (IP) rights. This has motivated IP right-holders to alter their approach to IP... more
The internet, in view of its expanse and the anonymity it offers to users, has posed significant challenges in the enforcement of Intellectual Property (IP) rights. This has motivated IP right-holders to alter their approach to IP enforcement–thus, instead of attempting litigate against individual infringers, they have shifted their focus to intermediaries that provide access to or host online content. The purpose of this article is to consider whether the current procedural laws in Sri Lanka provide a basis for IP right-holders to seek injunctive relief against Internet Service Providers (ISPs) with the aim of compelling such intermediaries to adopt technical measures that block access to infringing online content–such injunctions being popularly known as 'blocking injunctions'. It is concluded that neither the Intellectual Property Act 2003, the law governing the protection and enforcement of IP rights in Sri Lanka, nor the provisions in the Judicature Act 1971 or the Civil Procedure Code 1889 provide a proper legal basis for injunctions that could compel an ISP to implement blocking measures.
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Geo-blocking is the technical means by which copyright owners and licensees give effect to the practice of territorial licensing arrangements in respect of works made available on the internet. In effect, this has led to market... more
Geo-blocking is the technical means by which copyright owners and licensees give effect to the practice of territorial licensing arrangements in respect of works made available on the internet. In effect, this has led to market fragmentation in an environment where consumers see no borders and have the expectation of universal access to content. Online consumers, therefore, have retained the services of Virtual Private Networks (VPNs) to bypass geo-blocking technology, a practice that has irritated copyright owners, and in particular the film industry. In light of these tensions, this article first considers whether geo-blocking measures are valid technology protection measures. Second, the article considers whether the injunctive remedy made available in the European Union, Singapore and Australia specifically targeting 'intermediaries' and 'network' or 'carriage' service providers applies to VPNs so that they can be compelled to adopt technical measures to prevent their users from bypassing geo-blocking measures.
This article explores the possibility of holding internet intermediaries accountable for infringements of trade mark rights committed by third-party users of the internet, on the basis of English common law principles applicable to cases... more
This article explores the possibility of holding internet intermediaries accountable for infringements of trade mark rights committed by third-party users of the internet, on the basis of English common law principles applicable to cases involving negligent omissions. First, the article argues that loss suffered by a trade mark owner as a result of trade mark infringement is distinguishable from pure economic loss. Making this distinction is crucial, in view of the general reluctance on the part of the English courts to award damages in actions alleging negligence giving rise to pure economic loss. Secondly, the article considers the relevance of English common law principles applicable in cases of negligent omissions to three hypothetical, yet realistic, scenarios that are set out in this article—the first concerning intermediaries that provide access to the internet (i.e. Internet Service Providers ( ISPs)), the second concerning intermediaries that link content (i.e. search engines) and the third concerning intermediaries that store content at the request of third-party internet users (i.e. hosts). This analysis is carried out in light of the three stage test set out by the House of Lords in Caparo v Dickman that considers three factors—i.e. foreseeability, proximity and policy—before it could be determined that a duty of care should be imposed in any given situation. Accordingly, the article concludes that the first and second limbs of the test will be easily met where online hosts, although not ISPs and search engines, are subject to a duty of care in circumstances where they have been specifically made aware of content residing on their platforms giving rise to trade mark infringements—the failure or omission on their part to remove the infringing content giving rise to a breach of this duty. However, satisfying the third limb of the Caparo v Dickman test, under which policy is considered, could be somewhat difficult. This is because, the imposition of a duty of care, as envisaged in this article, on online hosts would inevitably lead to the practice of notice and takedown, a practice that has been widely criticised as being susceptible to abuse, unless proper safeguards are put in place. The lack of proper safeguards under the laws currently applicable in England, therefore, may be regarded as a sound policy argument against the imposition of a duty of care on online hosts even in the limited circumstances set out in this article.
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The internet provides relative anonymity to its users. Anonymity is said to be relative because online intermediaries that provide access to, link or host content hold information about users to whom their services are supplied. Although... more
The internet provides relative anonymity to its users. Anonymity is said to be relative because online intermediaries that provide access to, link or host content hold information about users to whom their services are supplied. Although the retention of such information on the part of intermediaries is primarily for their own internal functions, this information can become vital to anyone whose rights are infringed on the internet – ie to trace and file legal action against the wrongdoer.
The objective of this paper is to consider the availability, and role of, injunctions, as a means of providing aggrieved parties access to subscriber information held by online intermediaries operating in Sri Lanka (a remedy which might be described as ‘information injunctions’), so that such aggrieved parties could institute legal action against an intermediary’s subscriber or subscribers that engaged in an infringing act.
The objective of this paper is to consider the availability, and role of, injunctions, as a means of providing aggrieved parties access to subscriber information held by online intermediaries operating in Sri Lanka (a remedy which might be described as ‘information injunctions’), so that such aggrieved parties could institute legal action against an intermediary’s subscriber or subscribers that engaged in an infringing act.
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The Trade Marks Act 1995 (Cth) as it currently stands does not provide a remedy for trade mark owners against online hosts, in the circumstances where the services offered by such hosts are utilised by third-party users to commit trade... more
The Trade Marks Act 1995 (Cth) as it currently stands does not provide a remedy for trade mark owners against online hosts, in the circumstances where the services offered by such hosts are utilised by third-party users to commit trade mark infringements. There is also no comparable authorisation-type liability that could be made use of under trade mark law, authorisation being a concept familiar to the copyright domain. Holding online hosts liable as joint tortfeasors, or under the provisions of the Australian Consumer Law (formerly, the Trade Practices Act 1974 (Cth)) is equally difficult. In the circumstances, this article explores the possibility of holding online hosts liable for infringements of trade mark rights committed by third-party users, on the basis of common law principles applicable to cases involving negligent omissions.
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This article explores the problem of collateral damage that blocking measures give rise to. In awarding injunctions against Internet Service Providers (ISPs), courts in the UK and some of the other EU, as well as Nordic, states have... more
This article explores the problem of collateral damage that blocking measures give rise to. In awarding injunctions against Internet Service Providers (ISPs), courts in the UK and some of the other EU, as well as Nordic, states have preferred to require ISPs to implement Domain Name Service (DNS) blocking, as opposed to blocking of Internet Protocol (IP) addresses, in cases where the target website that infringes an intellectual property right shares its IP address with other legitimate websites. This is to avoid the problem of collateral damage associated with IP blocking in such situations. Yet, as this article points out, DNS blocking could also give rise to a different form of collateral damage that must be equally avoided. In the circumstances, courts may be left with the single option of adopting URL blocking, which although is highly accurate and entails no collateral damage, could be easily circumvented without any cost being incurred. It is therefore argued that the EU’s injunctive framework for the enforcement of intellectual property rights ought to be utilised in innovative ways in order to target other categories of online intermediaries, including hosts. This would not only transform the injunctive remedy into a more holistic one, but also avoid ISPs from being overburdened as a result of having to implement blocking measures.
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Domain names are useful as they are a human friendly substitute for Internet Protocol Addresses, which are crucial in establishing communications between devices attached to the Internet. Yet, because domain names take an alphanumeric... more
Domain names are useful as they are a human friendly substitute for Internet Protocol Addresses, which are crucial in establishing communications between devices attached to the Internet. Yet, because domain names take an alphanumeric format, they are capable of representing trademarks and names of people and businesses – which has given rise to legal disputes due to the prevalence in the practice of cybersquatting. In order to deal with such disputes, the Internet Corporation for Assigned Names and Numbers has developed a Universal Domain Name Dispute Resolution Policy (‘UDRP’), which has been adopted and applied at national level – the Australian .au Domain Name Dispute Resolution Policy (‘auDRP’) being an example. To-date, there have been no attempts to undertake a critical and comparative review of the key decisions delivered by panels constituted under the UDRP and auDRP. This article seeks to fill that void.
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This article critically, and comparatively, evaluates the legal basis and key shortcomings of the blocking injunction, which has gained popularity in the European Union (‘EU’), Singapore and lately Australia, as an alternative to the... more
This article critically, and comparatively, evaluates the legal basis and key shortcomings of the blocking injunction, which has gained popularity in the European Union (‘EU’), Singapore and lately Australia, as an alternative to the extrajudicial ‘Notice and Takedown’ approach to enforce Intellectual Property rights. The article concludes that there are problems not only with the remedy itself, but also in the manner in which the blocking injunction is implemented. The fact that multiple proceedings have to be filed in order to obtain a global level of enforcement and the possibility of blocking measures being circumvented are problems with the remedy itself. In the EU’s context at least, not only does the implementation of the blocking injunction fall short of due process requirements, but also questions the legal basis for the remedy in the field of enforcing trademark rights.
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The Uniform Domain Name Dispute Resolution Policy (‘UDRP’) establishes the international framework for the resolution of domain name disputes in the generic top level domains (‘gTLDs’) — such as .com, .net, .org. National authorities are... more
The Uniform Domain Name Dispute Resolution Policy (‘UDRP’) establishes the international framework for the resolution of domain name disputes in the generic top level domains (‘gTLDs’) — such as .com, .net, .org. National authorities are responsible for dispute resolution of country code top-level domains (‘ccTLDs’) — such as .au. In Australia, the relevant local authority
for the administration of ccTLDs is .au Domain Administration Ltd (‘auDA’), and the relevant local policy governing .au domain name disputes is the .au Dispute Resolution Policy (‘auDRP’). The auDRP is an adaptation of the international UDRP. The purpose of both the UDRP and the auDRP is to provide an alternative to litigation for the quicker and cheaper resolution of domain name disputes, and to date both policies have proven to be an
effective dispute resolution mechanism. While the auDRP is based on the UDRP, there are some significant differences between the policies. The UDRP system has attracted significant comment by various scholars — despite its fairly brief history. By contrast, there has been very little discourse on the auDRP and Australian domain name law to date — although it has
been in force for almost as long as the UDRP. The aim of this article is to redress this deficiency and focus on the auDRP
as a distinct and developing body of Australian law, and to explore some of the emerging themes arising from auDRP decisions to date. Specifically, the authors have identified two specific themes that will be the subject of this article. First, the authors will examine the way in which there has been a merging of the bad faith limb under international and Australian domain
name law, where UDRP panels have circumvented the narrower scope of para 4(a)(iii) by interpreting this provision as if it were framed in the same way the corresponding provision of the auDRP has been worded. This broader interpretation has been particularly notable in two types of UDRP decisions: ‘non use’ decisions, and the decisions involving ‘subsequent bad faith use’. Secondly, the article will explore in detail the link between the
second limb of para 4(a) dealing with rights or legitimate interests and the third limb dealing with bad faith — with a particular focus on how auDRP panels have interpreted these two provisions. Finally, given that both UDRP and auDRP decisions reveal an inconsistent and unpredictable pastiche of
results, the authors conclude by arguing for the importance of establishing an appeals process within the auDRP and UDRP systems.
for the administration of ccTLDs is .au Domain Administration Ltd (‘auDA’), and the relevant local policy governing .au domain name disputes is the .au Dispute Resolution Policy (‘auDRP’). The auDRP is an adaptation of the international UDRP. The purpose of both the UDRP and the auDRP is to provide an alternative to litigation for the quicker and cheaper resolution of domain name disputes, and to date both policies have proven to be an
effective dispute resolution mechanism. While the auDRP is based on the UDRP, there are some significant differences between the policies. The UDRP system has attracted significant comment by various scholars — despite its fairly brief history. By contrast, there has been very little discourse on the auDRP and Australian domain name law to date — although it has
been in force for almost as long as the UDRP. The aim of this article is to redress this deficiency and focus on the auDRP
as a distinct and developing body of Australian law, and to explore some of the emerging themes arising from auDRP decisions to date. Specifically, the authors have identified two specific themes that will be the subject of this article. First, the authors will examine the way in which there has been a merging of the bad faith limb under international and Australian domain
name law, where UDRP panels have circumvented the narrower scope of para 4(a)(iii) by interpreting this provision as if it were framed in the same way the corresponding provision of the auDRP has been worded. This broader interpretation has been particularly notable in two types of UDRP decisions: ‘non use’ decisions, and the decisions involving ‘subsequent bad faith use’. Secondly, the article will explore in detail the link between the
second limb of para 4(a) dealing with rights or legitimate interests and the third limb dealing with bad faith — with a particular focus on how auDRP panels have interpreted these two provisions. Finally, given that both UDRP and auDRP decisions reveal an inconsistent and unpredictable pastiche of
results, the authors conclude by arguing for the importance of establishing an appeals process within the auDRP and UDRP systems.
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The practice of ‘keyword advertising’ has come under close academic and judicial scrutiny in the field of trademarks. Yet, it was not until recently that the controversial advertising practice had been viewed through the lens of consumer... more
The practice of ‘keyword advertising’ has come under close academic and judicial scrutiny in the field of trademarks. Yet, it was not until recently that the controversial advertising practice had been viewed through the lens of consumer protection. Thus, in Google v. Australian Competition and Consumer Commission (‘Google v. ACCC’), Google’s keyword advertising scheme (known as AdWords) was challenged under the consumer protection provisions of the Trade Practices Act 1974 (Cth) (‘TPA’), which was replaced by the Australian Consumer Law (‘ACL’). Although this approach had the potential of overcoming the stringent ‘use as a trademark’ requirement that must be satisfied to succeed in any action under the Trade Marks Act 1995 (Cth), Google’s ultimate victory in Google v. ACCC raises serious concerns in respect of protecting the interests of trademark owners and consumers in relation to the misleading and deceptive use of trademarks in keyword advertising, in particular where it becomes necessary to hold online service providers such as Google accountable for the infringing conduct of their users. In the circumstances, it is suggested that the accessorial liability provisions of the ACL (which were also to be found in the former TPA) provide a better approach in serving the interests of trademark owners.
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This article critically evaluates the manner in which the blocking injunction has been implemented in the United Kingdom (‘UK’), the legal basis for which is derived from the European Union (‘EU’) legal framework. Unlike the extrajudicial... more
This article critically evaluates the manner in which the blocking injunction has been implemented in the United Kingdom (‘UK’), the legal basis for which is derived from the European Union (‘EU’) legal framework. Unlike the extrajudicial and privatised Notice and Takedown (‘N&T‘) process, the blocking injunction is a court-supervised mechanism, and hence, avoids the key criticism levelled against N&T. Yet, there are problems with the blocking injunction, in particular in the manner in which it is implemented. The article first demonstrates that, unlike in the context of copyright enforcement, the legal basis for the blocking injunction in the field of trademark protection is suspect. Secondly, the article posits that the procedure pertaining to the grant of a blocking injunction runs counter to the principles of natural justice – in that, neither the relevant EU directives, nor their domestic implementations, provide for the target website operators (i.e. the authors of online content), whose content is sought to be blocked, to be notified of, or joined in, the proceedings where injunctions are sought. As such, it is argued, that an important safeguard that has been incorporated into blocking orders, which allows affected parties to apply for a variation or vacation of a blocking order, is r rendered meaningless. Lastly, the article identifies four areas – i.e. circumvention, multiplicity of proceedings, barriers to legitimate trade and costs of implementation – where there might be problems in the future that may question the efficacy of this remedy.
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The idea that the Internet is a space that cannot, or should not, be regulated has been proven to be anything but true. Yet, the unique characteristics of the Internet have made its regulation problematic – to which online content... more
The idea that the Internet is a space that cannot, or should not, be regulated has been proven to be anything but true. Yet, the unique characteristics of the Internet have made its regulation problematic – to which online content regulation is no exception. Although Internet intermediaries, that perform a crucial role in providing access to, storing and linking online content, are often best suited to regulate the transmission of unlawful content, legislators have adopted a protectionist attitude towards them on the basis that the Internet, and of course Internet free speech, can only flourish if these intermediaries are allowed the space and freedom to develop their technology. The Digital Millennium Copyright Act 1998 enacted in the United States is a reflection of this attitude – providing Internet intermediaries that offer hosting and linking services with conditional immunity upon them implementing a ‘notice and takedown’ scheme that allows copyright owners to have infringing content removed from the Internet almost immediately. However, although this conditional immunity scheme favours the growth of Internet intermediaries, evidence suggests that the implementation of ‘notice and takedown’ procedures by these intermediaries runs counter to the protection of free speech rights on the Internet – leading to a paradoxical situation.
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The richness of the Internet owes much to the diversity of its content, the hosting of which is made possible by content hosts. Yet, not all that is diverse is legal. Given that copyright subsists in creative content, the digitisation of... more
The richness of the Internet owes much to the diversity of its content, the hosting of which is made possible by content hosts. Yet, not all that is diverse is legal. Given that copyright subsists in creative content, the digitisation of content has made their duplication, adaptation and publication on the Internet extremely easy – resulting in a substantial proportion of illegal content being those that infringe copyright. In the circumstances, copyright owners have increasingly turned to Internet intermediaries, including content hosts, to protect their rights on the Internet. While the provisions in the Copyright Act 1968 (Cth) that impute liability for authorising another’s infringement provides the basis for the liability of content hosts for hosting third party content that infringe copyright, the various defences and safe harbour provisions available therein do not provide any “additional” protection to content hosts. This may have implications in the way content hosts operate undermining fair use and free speech doctrine.
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(CASE ANALYSIS) In a ground breaking decision of the England and Wales High Court (‘High Court’) in Richemont International SA and others v. British Sky Broadcasting Limited and others (‘Richemont v. Sky’) extended the practice of issuing... more
(CASE ANALYSIS) In a ground breaking decision of the England and Wales High Court (‘High Court’) in Richemont International SA and others v. British Sky Broadcasting Limited and others (‘Richemont v. Sky’) extended the practice of issuing ‘blocking injunctions’, a practice that had gained popularity in the copyright context, to protect trademark rights on the Internet.
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(CASE ANALYSIS) The Sri Lankan Court of Appeal refused an application made by the Ceylon Tobacco Company PLC seeking to quash the Tobacco Products (Labelling and Packaging) Regulation No 1 of 2012 (published in Gazette Extraordinary No... more
(CASE ANALYSIS) The Sri Lankan Court of Appeal refused an application made by the Ceylon Tobacco Company PLC seeking to quash the Tobacco Products (Labelling and Packaging) Regulation No 1 of 2012 (published in Gazette Extraordinary No 1770/15 of 8 August 2012) subsequently amended by regulation published in Gazette Extraordinary No. 1797/22 of 15 February 2013 (‘regulations’) for being ultra vires its empowering statute, the National Authority on Tobacco and Alcohol Act 2006. The court came to its finding having considered the impact pictorial health warnings have on the use of tobacco, the nature of trade mark rights guaranteed under the Intellectual Property Act 2003 and the Sri Lankan government's interest of promoting public health, especially in view of its obligations under the World Health Organization Framework Convention on Tobacco Control.
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The use of tobacco entails negative health consequences. In fact, it is reported that had the ill effects of tobacco been known much earlier in time, tobacco would have been a banned substance. Yet, in today's context tobacco has become... more
The use of tobacco entails negative health consequences. In fact, it is reported that had the ill effects of tobacco been known much earlier in time, tobacco would have been a banned substance. Yet, in today's context tobacco has become part of legitimate trade, and the livelihoods in countries that export tobacco heavily depend on trade in tobacco. In the circumstances, could governments intervene on health and public policy grounds and regulate the manner in which tobacco products are marketed and sold? If so, to what extent? These are precisely the questions that fuel the gruelling dual between tobacco companies and health conscious countries, such as Australia that has recently enacted legislation making mandatory the plain packaging of tobacco products from December 2012. The Australian legislative measure, namely the Tobacco Plain Packaging Act 2011 (Cth), is currently under attack in several fronts, including the World Trade Organisation, though recently the Australian High Court upheld the constitutionality of the plain packaging legislation. The purpose of this paper is to approach the question of the legality of government intervention in totally prohibiting the striking elements of tobacco packaging from a purely international trademark law point of view. First, the paper identifies the scope of trademark protection as set out in the Agreement on the Trade Related aspects of Intellectual Property Rights (“TRIPs”) and then goes on to analyse the Australian plain packaging law in the context of its own trademark legislation. Thence, the paper considers whether the Australian plain packaging legislation complies with the core provisions on trademark protection enshrined in TRIPs, and lastly provides a possible compromise to reconcile the competing interests.
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Case summary: The Australian High Court unanimously exonerated Google from liability for an alleged contravention of section 52 of the Trade Practices Act 1979 (Cth), confirming that Google did not engage in ‘misleading’ or ‘deceptive’... more
Case summary: The Australian High Court unanimously exonerated Google from liability for an alleged contravention of section 52 of the Trade Practices Act 1979 (Cth), confirming that Google did not engage in ‘misleading’ or ‘deceptive’ conduct when it displayed advertisements in the course of providing an online keyword advertising service known as AdWords.
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Having been a contracting party to the General Agreement on Tariffs and Trade (GATT) since 1948, Sri Lanka ratified the Marrakesh Agreement establishing the World Trade Organization (WTO) in June 1994, and became one of its founding... more
Having been a contracting party to the General Agreement on Tariffs and Trade (GATT) since 1948, Sri Lanka ratified the Marrakesh Agreement establishing the World Trade Organization (WTO) in June 1994, and became one of its founding Members. Since then, Sri Lanka has striven to bring its local laws into conformity with the standards imposed by the WTO. In the context of intellectual property (IP), the former Code of Intellectual Property of 1979 was replaced by the Intellectual Property Act of 2003. This legislative change was particularly important in discharging Sri Lanka's obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which forms one of several WTO covered agreements, to which Sri Lanka is party. The purpose of this paper is to assess the extent that the Sri Lankan trademark law is in conformity with the standards imposed by TRIPS. The focus, in particular, is on the aspects of acquisition and cancellation of trademark rights and the nature and scope of these rights.
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It is the general practice in Sri Lanka for parties to an arbitration agreement to seek interim relief from a court of law pending the constitution of an Arbitral Tribunal. Obtaining such interim relief may be crucial for parties... more
It is the general practice in Sri Lanka for parties to an arbitration agreement to seek interim relief from a court of law pending the constitution of an Arbitral Tribunal. Obtaining such interim relief may be crucial for parties resorting to arbitration to preserve the status quo of the subject matter of the dispute, so as to ensure that the arbitration process does not become futile. However, given that an arbitration agreement seeks to give effect to the intention of parties to an arbitration agreement to resolve disputes outside courts, it is necessary to reconsider the appropriateness of judicial intervention in granting interim relief. This brief comment seeks to identify some important thoughts on the issue of interim measures in the context of arbitration in Sri Lanka.
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Sri Lanka, having overcome the tragedy of terrorism, has now entered a new global era. As a country gaining recognition as an industrial port in South Asia, foreign investors and multinational companies are looking to set up business in... more
Sri Lanka, having overcome the tragedy of terrorism, has now entered a new global era. As a country gaining recognition as an industrial port in South Asia, foreign investors and multinational companies are looking to set up business in Sri Lanka. To this, the ability of parties to engage in electronic transactions play a significant role, as in today’s world, most transactions penetrate national frontiers and are required to be facilitated by electronic means. The Electronic Transactions Act of 2006 has facilitated this process which has been further strengthened by the e-Sri Lanka initiative of the Information & Communication Technology Agency of Sri Lanka. However, parties would be confident to utilise electronic means to enter into contractual obligations only if they are assured that when disputes arise they have the ability to seek redress in a court of law that is open to the admission of electronic evidence. Given that courts of law are only capable of resolving disputes based on the evidence presented to them, unless the Sri Lankan law concerning the admissibility of evidence permits courts to consider electronic forms of evidence, parties that enter into electronic transactions would be at a significant disadvantage. This brief paper seeks to assess the current laws applicable in Sri Lanka on the admissibility of electronic evidence. The paper will focus on the important provisions in the Evidence (Special Provisions) Act of 1995, the Evidence (Amendment) Act of 2005 and the Electronic Transactions Act of 2006 and raise some pertinent questions that still remain unanswered.
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Proponents of the doctrine of separation of powers believe that it protects democracy and forestalls tyranny. However, those opposed to the doctrine question whether it accomplishes this end, and point out the success of mingling powers... more
Proponents of the doctrine of separation of powers believe that it protects democracy and forestalls tyranny. However, those opposed to the doctrine question whether it accomplishes this end, and point out the success of mingling powers in parliamentary democracies.
Although the Soulbury Constitution, which established a parliamentary system of government on the Westminster model, did not make any express reference to the doctrine, it was recognised by the Privy Council in Liyanage v. The Queen that the doctrine was embedded in the said Constitution, albeit by implication. The vesting of the judicial power of the People in Parliament to be exercised through the courts and the other institutions administering justice by the Republican Constitution of 1972, and the transition into a hybrid Presidential system of government with a Cabinet of Ministers answerable to parliament in 1978 have not in any way diminished the rationale for the continuance of the doctrine, at least functionally, in the political fabric of Sri Lanka.
No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless, some systems are founded on the doctrine of separation of powers, while others are based on a mingling of powers. The doctrine signifies the division of governmental power among the executive, legislative and judicial organs of government. It is argued that this trichotomy of governmental power is the best safeguard against tyranny and dictatorship and the upholding of the rule of law.
This paper is predicated on the factual realism that “power corrupts” and “absolute power corrupts absolutely,” and makes a detailed study of the extent to which the doctrine of separation of powers is enshrined in the Constitution of the Democratic Socialist Republic of Sri Lanka. It will then delve into the mechanism adopted by the Constitution of Sri Lanka (including the Seventeenth Amendment) for safeguarding the independence of the judiciary, and consider whether such mechanism is in harmony with the traditional norms of separation of powers and how far it is effective in achieving the objectives of such a mechanism. The methodology will be analytical and will include a comparative examination of Constitutions of other countries. Finally, the paper would propose reforms in evolving the best approach in extracting the notions emanating from the doctrine of separation of powers to build an independent judiciary which is a prerequisite to a democratic and free society.
Although the Soulbury Constitution, which established a parliamentary system of government on the Westminster model, did not make any express reference to the doctrine, it was recognised by the Privy Council in Liyanage v. The Queen that the doctrine was embedded in the said Constitution, albeit by implication. The vesting of the judicial power of the People in Parliament to be exercised through the courts and the other institutions administering justice by the Republican Constitution of 1972, and the transition into a hybrid Presidential system of government with a Cabinet of Ministers answerable to parliament in 1978 have not in any way diminished the rationale for the continuance of the doctrine, at least functionally, in the political fabric of Sri Lanka.
No democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Nonetheless, some systems are founded on the doctrine of separation of powers, while others are based on a mingling of powers. The doctrine signifies the division of governmental power among the executive, legislative and judicial organs of government. It is argued that this trichotomy of governmental power is the best safeguard against tyranny and dictatorship and the upholding of the rule of law.
This paper is predicated on the factual realism that “power corrupts” and “absolute power corrupts absolutely,” and makes a detailed study of the extent to which the doctrine of separation of powers is enshrined in the Constitution of the Democratic Socialist Republic of Sri Lanka. It will then delve into the mechanism adopted by the Constitution of Sri Lanka (including the Seventeenth Amendment) for safeguarding the independence of the judiciary, and consider whether such mechanism is in harmony with the traditional norms of separation of powers and how far it is effective in achieving the objectives of such a mechanism. The methodology will be analytical and will include a comparative examination of Constitutions of other countries. Finally, the paper would propose reforms in evolving the best approach in extracting the notions emanating from the doctrine of separation of powers to build an independent judiciary which is a prerequisite to a democratic and free society.
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Sri Lanka is enriched with cultural and biological diversity. Traditions of time immemorial have been preserved, and customs and practices of yore are still in vogue. Sri Lanka is also home to one of the oldest indigenous populations in... more
Sri Lanka is enriched with cultural and biological diversity. Traditions of time immemorial have been preserved, and customs and practices of yore are still in vogue. Sri Lanka is also home to one of the oldest indigenous populations in the world, the Veddhas, which has preserved its traditional culture from being disintegrated by modern society. If these traditional cultural values and knowledge are to be preserved from the increasing influence of modernity, a suitable legal framework must exist to afford definitive protection. This paper focuses on the deficiencies of the existing laws of Sri Lanka, which firstly, protects only ‘expressions of folklore’, and secondly utilises norms of copyright in an inappropriate manner to confer protection. While traditional knowledge in Sri Lanka is not limited to folklore, the survey undertaken herein finds that the best approach to protect traditional knowledge in its widest sense is to implement a sui generis approach. That way, law makers will be bestowed with sufficient flexibility and diversity to formulate laws that would take account of the unique characteristics of traditional knowledge and confer adequate legal protection to such knowledge.
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Geographical Indications (GIs) come with the promise of socio-economic development for local communities. But more often than not, GIs in the developing world have not been able to deliver on that promise. However, it is unwise to place... more
Geographical Indications (GIs) come with the promise of socio-economic development for local communities. But more often than not, GIs in the developing world have not been able to deliver on that promise. However, it is unwise to place the entire blame on GIs for this shortcoming. Instead, the problem lies in the inequitable distribution of premiums generated by GIs within supply/value chains. For that reason, we looked outside the GIs system for inspiration and were drawn towards Corporate Social Responsibility (CSR) and fair-trade. Both the CSR and fair-trade examples we considered share common standards that aim to guarantee fair wages/prices, access to education and training, healthcare and safe working conditions, and human rights to stakeholders involved across supply/value chains. Our plea is for these common standards to be infused into the GIs system to benefit local communities. We have recommended a strategy to achieve that objective.
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This article critically evaluates the current approach adopted in Australia in dealing with online content that either infringes, or facilitates the infringement of, copyright. It first considers the recent decision of the Australian... more
This article critically evaluates the current approach adopted in Australia in dealing with online content that either infringes, or facilitates the infringement of, copyright. It first considers the recent decision of the Australian Federal Court in Roadshow Films v Telstra, which resulted in an injunction being issued against some of the major Australian ISPs requiring them to block access to a number of online locations that infringed copyright. The discussion focuses on the issue of circumvention and compares the approach favoured by the High Court of England and Wales in tacking this problem. The article next considers the practice of notice and takedown (N & T). A consideration of this extrajudicial means of copyright enforcement is inevitable because the blocking injunction (the basis for which is derived from s.115A of the Copyright Act 1968 (Cth)) is limited to infringing online locations outside Australia. As such, the practice of N & T is crucial when the source of infrin...
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This article explores the possibility of holding internet intermediaries accountable for infringements of trade mark rights committed by third-party users of the internet, on the basis of English common law principles applicable to cases... more
This article explores the possibility of holding internet intermediaries accountable for infringements of trade mark rights committed by third-party users of the internet, on the basis of English common law principles applicable to cases involving negligent omissions. First, the article argues that loss suffered by a trade mark owner as a result of trade mark infringement is distinguishable from pure economic loss. Making this distinction is crucial, in view of the general reluctance on the part of the English courts to award damages in actions alleging negligence giving rise to pure economic loss. Secondly, the article considers the relevance of English common law principles applicable in cases of negligent omissions to three hypothetical, yet realistic, scenarios that are set out in the article-the first concerning intermediaries that provide access to the internet (i.e. ISPs), the second concerning intermediaries that link content (i.e. search engines) and the third concerning intermediaries that store content at the request of third-party internet users (i.e. hosts). This analysis is carried out in light of the three stage test set out by the House of Lords in Caparo v Dickman that considers three factors – i.e. foreseeability, proximity and policy-before it could be determined that a duty of care should be imposed in any given situation. Accordingly, the article concludes that the first and second limbs of the test will be easily met where online hosts, although not ISPs and search engines, are subject to a duty of care in circumstances where they have been specifically made aware of content residing on their platforms giving rise to trade mark infringements – the failure or omission on their part to remove the infringing content giving rise to a breach of this duty. However, satisfying the third limb of the Caparo v Dickman test, under which policy is considered, could be somewhat difficult. This is because, the imposition of a duty of care, as envisaged in this article, on online hosts would inevitably lead to the practice of notice and takedown, a practice that has been widely criticised as being susceptible to abuse, unless proper safeguards are put in place. The lack of proper safeguards under the laws currently applicable in England, therefore, may be regarded as a sound policy argument against the imposition of a duty of care on online hosts even in the limited circumstances set out in this article
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The Trade Marks Act 1995 (Cth) as it currently stands does not provide a remedy for trade mark owners against online hosts, in the circumstances where the services offered by such hosts are utilised by third-party users to commit trade... more
The Trade Marks Act 1995 (Cth) as it currently stands does not provide a remedy for trade mark owners against online hosts, in the circumstances where the services offered by such hosts are utilised by third-party users to commit trade mark infringements. There is also no comparable authorisation-type liability that could be made use of under trade mark law, authorisation being a concept familiar to the copyright domain. Holding online hosts liable as joint tortfeasors, or under the provisions of the Australian Consumer Law (formerly, the Trade Practices Act 1974 (Cth)) is equally difficult. In the circumstances, this article explores the possibility of holding online hosts liable for infringements of trade mark rights committed by third-party users, on the basis of common law principles applicable to cases involving negligent omissions
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In early 2020, the Government of Sri Lanka decided that all bodies of individuals who had (or were suspected to have) died of COVID-19 should be disposed of by cremation alone. Although this decision appears to be neutral and does not... more
In early 2020, the Government of Sri Lanka decided that all bodies of individuals who had (or were suspected to have) died of COVID-19 should be disposed of by cremation alone. Although this decision appears to be neutral and does not give rise to de jure discrimination, as a matter of fact, it has significantly impacted the religious rights of the Muslim community in Sri Lanka. This is because they firmly believe in the need to bury the dead in a dignified and decent manner—cremation being regarded as a repugnant practice amounting to a desecration of the human body. As such, the Sri Lankan Government’s decision to adopt a cremation-only policy interfered with the right of all Sri Lankan Muslims to manifest their religion or belief as guaranteed by the 1978 Constitution of Sri Lanka. Despite there being no scientific evidence to suggest that the burial of COVID-19 victims could give rise to contamination of the surroundings and thereby cause the spread of the virus, the Government of Sri Lanka continued with the policy for almost a whole year. Thereafter, due to international pressure, the Sri Lankan Government decided to allow burials but in a very restrictive manner. The objective of this article is to consider the extent to which the aforementioned decisions of the Sri Lankan Government are consistent with the fundamental rights framework of the country’s Constitution.
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The Uniform Domain Name Dispute Resolution Policy (‘UDRP’) establishes the international framework for the resolution of domain name disputes in the generic top level domains (‘gTLDs’) — such as .com, .net, .org. National authorities are... more
The Uniform Domain Name Dispute Resolution Policy (‘UDRP’) establishes the international framework for the resolution of domain name disputes in the generic top level domains (‘gTLDs’) — such as .com, .net, .org. National authorities are responsible for dispute resolution of country code top-level domains (‘ccTLDs’) — such as .au. In Australia, the relevant local authority for the administration of ccTLDs is .au Domain Administration Ltd (‘auDA’), and the relevant local policy governing .au domain name disputes is the .au Dispute Resolution Policy (‘auDRP’). The auDRP is an adaptation of the international UDRP. The purpose of both the UDRP and the auDRP is to provide an alternative to litigation for the quicker and cheaper resolution of domain name disputes, and to date both policies have proven to be an effective dispute resolution mechanism. While the auDRP is based on the UDRP, there are some significant differences between the policies. The UDRP system has attracted significant ...
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The richness of the internet owes much to the diversity of its content, the hosting of which is made possible by content hosts. Yet, not all that is diverse is legal. Given that copyright subsists in creative content, the digitisation of... more
The richness of the internet owes much to the diversity of its content, the hosting of which is made possible by content hosts. Yet, not all that is diverse is legal. Given that copyright subsists in creative content, the digitisation of content has made its duplication, adaptation and publication on the internet extremely easy-resulting in a substantial proportion of illegal content infringing copyright. In the circumstances, copyright owners have increasingly turned to internet intermediaries, including content hosts, to protect their rights on the internet. While the provisions in the Copyright Act 1968 (Cth) that impute liability for authorising another s infringement provides the basis for the liability of content hosts for hosting third-party content that irifringe copyright, the various defences and safe harbour provisions available therein do not provide any "additional" protection to content hosts. This may have implications in the way content hosts operate, under...
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This article explores the problem of collateral damage that blocking measures give rise to. In awarding injunctions against internet service providers (ISPs), courts in the UK and some of the other EU, as well as Nordic, states have... more
This article explores the problem of collateral damage that blocking measures give rise to. In awarding injunctions against internet service providers (ISPs), courts in the UK and some of the other EU, as well as Nordic, states have preferred to require ISPs to implement Domain Name Service (DNS) blocking, as opposed to blocking of Internet Protocol (IP) addresses, in cases where the target website that infringes an intellectual property right shares its IP address with other legitimate websites. This is to avoid the problem of collateral damage associated with IP blocking in such situations. Yet, as this article points out, DNS blocking could also give rise to a different form of collateral damage that must be equally avoided. In the circumstances, courts may be left with the single option of adopting URL blocking, which, although it is highly accurate and entails no collateral damage, could easily be circumvented without any cost being incurred. It is therefore argued that the EU’...
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The internet, in view of its expanse and the anonymity it offers to users, has posed significant challenges in the enforcement of Intellectual Property (IP) rights. This has motivated IP right-holders to alter their approach to IP... more
The internet, in view of its expanse and the anonymity it offers to users, has posed significant challenges in the enforcement of Intellectual Property (IP) rights. This has motivated IP right-holders to alter their approach to IP enforcement–thus, instead of attempting litigate against individual infringers, they have shifted their focus to intermediaries that provide access to or host online content. The purpose of this article is to consider whether the current procedural laws in Sri Lanka provide a basis for IP right-holders to seek injunctive relief against Internet Service Providers (ISPs) with the aim of compelling such intermediaries to adopt technical measures that block access to infringing online content–such injunctions being popularly known as 'blocking injunctions'. It is concluded that neither the Intellectual Property Act 2003, the law governing the protection and enforcement of IP rights in Sri Lanka, nor the provisions in the Judicature Act 1971 or the Civil Procedure Code 1889 provide a proper legal basis for injunctions that could compel an ISP to implement blocking measures.
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Recent reports published in Sri Lankan newspapers suggest that local industries (particularly cinnamon producers) have raised concerns about the lack of a registration system for geographical indications (GIs) in Sri Lanka. They have even... more
Recent reports published in Sri Lankan newspapers suggest that local industries (particularly cinnamon producers) have raised concerns about the lack of a registration system for geographical indications (GIs) in Sri Lanka. They have even gone on to suggest that the failure on the part of Sri Lankan authorities and stakeholders to obtain protection of Sri Lankan GIs in other jurisdictions (and in particular the EU) is attributable to the lack of a domestic mechanism for the registration of GIs. Both local industries and academics have made reference to the Indian approach on the registration and protection of GIs and have called for the implementation of a similar system in Sri Lanka. It was in order to address this specific concern and plea that the Cabinet of Ministers by a decision made in October 2016 pledged to amend the Intellectual Property Act 2003 (IP Act), which governs the protection and enforcement of Intellectual Property Rights in Sri Lanka. Yet, contrary to expectations and adopting an approach that is much less comprehensive than the existing legislative approach in India, the proposed amendment to the IP Act merely introduces a single subsection to s.161 that deals with the protection of GIs. Against this backdrop, this article deals with the following points. First, it considers whether the current regime for the protection of GIs in Sri Lanka is sufficient in order to obtain the necessary legal protection for Sri Lankan GIs both locally and globally. Secondly, the article critically assesses the new amendment to the IP Act, comparing it with the Indian approach, in considering its practicality and utility. It is argued that the new amendment adds nothing to existing law.
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This article critically, and comparatively, evaluates the legal basis and key shortcomings of the blocking injunction, which has gained popularity in the EU, Singapore and lately Australia, as an alternative to the extrajudicial “notice... more
This article critically, and comparatively, evaluates the legal basis and key shortcomings of the blocking injunction, which has gained popularity in the EU, Singapore and lately Australia, as an alternative to the extrajudicial “notice and takedown” approach to enforcing intellectual property rights. The article concludes that there are problems not only with the remedy itself, but also in the manner in which the blocking injunction is implemented. The fact that multiple proceedings have to be filed in order to obtain a global level of enforcement and the possibility of blocking measures being circumvented are problems with the remedy itself. In the EU context, at least, not only does the implementation of the blocking injunction fall short of due process requirements, but also the legal basis for the remedy in the context of enforcing trade mark rights is questionable.
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Despite the apparent advantages of the internet, there is little debate that it facilitates intellectual property infringements, including infringements of trade mark rights. Infringers not only remain hidden by the anonymity the internet... more
Despite the apparent advantages of the internet, there is little debate that it facilitates intellectual property infringements, including infringements of trade mark rights. Infringers not only remain hidden by the anonymity the internet provides but also take advantage of its increasing reach and the associated challenges with regard to cross-border enforcement of rights. These factors, among others, have rendered the internet a growing source of counterfeit and other infringing products. It has, therefore, become necessary for right holders to shift their focus from individual infringers to internet intermediaries, such as Internet Service Providers (ISPs), hosts and navigation providers, which are responsible in numerous ways for making content promoting infringements available to internet users. In light of these developments, this book conducts a comprehensive analysis of the liability of such intermediaries for trade mark infringements and considers the associated issues and challenges in the diverging approaches under which liability may be imposed. At present, however, neither UK trade mark law nor English common-law principles relating to accessorial liability provide a basis to hold internet intermediaries liable for trade mark infringements. As such, this book considers approaches adopted in some of the Continental European countries and the US in order to propose reforms aimed at addressing gaps in the existing legal framework. This book also examines alternative remedies, such as notice and takedown and injunctions, and discusses the associated shortcomings of each of these remedies.
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(CASE ANALYSIS) The Sri Lankan Court of Appeal refused an application made by the Ceylon Tobacco Company PLC seeking to quash the Tobacco Products (Labelling and Packaging) Regulation No 1 of 2012 (published in Gazette Extraordinary No... more
(CASE ANALYSIS) The Sri Lankan Court of Appeal refused an application made by the Ceylon Tobacco Company PLC seeking to quash the Tobacco Products (Labelling and Packaging) Regulation No 1 of 2012 (published in Gazette Extraordinary No 1770/15 of 8 August 2012) subsequently amended by regulation published in Gazette Extraordinary No. 1797/22 of 15 February 2013 (‘regulations’) for being ultra vires its empowering statute, the National Authority on Tobacco and Alcohol Act 2006. The court came to its finding having considered the impact pictorial health warnings have on the use of tobacco, the nature of trade mark rights guaranteed under the Intellectual Property Act 2003 and the Sri Lankan government's interest of promoting public health, especially in view of its obligations under the World Health Organization Framework Convention on Tobacco Control.
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(CASE ANALYSIS) In a ground breaking decision of the England and Wales High Court (‘High Court’) in Richemont International SA and others v. British Sky Broadcasting Limited and others (‘Richemont v. Sky’) extended the practice of issuing... more
(CASE ANALYSIS) In a ground breaking decision of the England and Wales High Court (‘High Court’) in Richemont International SA and others v. British Sky Broadcasting Limited and others (‘Richemont v. Sky’) extended the practice of issuing ‘blocking injunctions’, a practice that had gained popularity in the copyright context, to protect trademark rights on the Internet.
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Is software a ‘good’ or ‘service’? Deriving an answer is no easy task. Given the volume of trade in software, the prominence software has gained in international trade and the advent of the Internet and electronic commerce, answering this... more
Is software a ‘good’ or ‘service’? Deriving an answer is no easy task. Given the volume of trade in software, the prominence software has gained in international trade and the advent of the Internet and electronic commerce, answering this question is of paramount importance. In particular, the absence of a definition of ‘goods’ in the General Agreement on Tariffs and Trade and the existence of a deficient definition of ‘services’ in the General Agreement on Trade in Services has resulted in Members of the World Trade Organization (WTO) adopting varying approaches in classifying software. While this article focuses on the importance and consequence of software classification in the context of the WTO, upon an examination of the different approaches adopted by legal systems across the globe it also considers whether maintaining a goods–services dichotomy in software products is necessary. Given the unique and complex nature of software, it will be argued that sui generis treatment of software is the most appropriate solution to minimize the consequences of the differential treatment of software in the context of the WTO. 1 Background: from trade to electronic trade Traditionally, goods traded worldwide had to cross physical national frontiers. However, with the advancement of technology, most goods have *BSc in IT (Curtin University of Technology, Australia); Diploma in International Trade (Institute of European Studies, Macau, China); LLM in Commercial Law (University of Cambridge, UK); State Counsel, Attorney General’s Department of Sri Lanka; E-mail: althaf.marsoof@gmail.com. 291 at M oash U niersity on Jne 8, 2015 http://ijlirdjournals.org/ D ow nladed from transformed into electronic goods or as some call it ‘digitized goods’. It is electronic commerce (e-commerce) that has spearheaded electronic trade, and in the context of software, though previously only delivery on carrier-media (such as diskettes and CDs) was possible, technology has obliterated the need for carrier-media by enabling electronic delivery. While software has been widely utilized for the production of goods (eg computer controlled factories) and the provision of services (eg accounting services), it perhaps was never envisaged by the founders of the General Agreement on Tariffs and Trade (GATT) 1947 and its successor, the World Trade Organization (WTO), that software itself would become a tradable commodity. At the time GATT 1947 was negotiated, the term ‘software engineering’ had not even been invented. The current GATT 1994 regime is no different to its predecessor evidencing its incapacity to deal with new technologies such as software. Therefore, GATT as it stands today is more suited to regulate trade in goods, and not tradable intangibles such as software. Although there is judicial consensus in domestic legal systems that software affixed on carrier-media are goods, the classification of electronically delivered software is controversial, casting doubt on its amenability to GATT. Given that GATT regulates trade in ‘goods’, unless such software is captured by the General Agreement on Trade in Services (GATS) as a ‘service’, trade in electronically delivered software would be driven outside the purview of the WTO. This would result in WTO rules being applied to software delivered on carrier-media while leaving its electronically delivered counterpart unaffected by WTO rules. This gives rise to differential treatment of the identical or like software predicated solely on the mode of delivery. The difficulty of classifying electronic goods (such as software) has also attracted the attention of the United Nations (UN) illuminating the global importance of software classification. 1 S Teltscher, ‘Electronic Commerce and Development: Fiscal Implications of Digitized Goods Trading’ (2012) 30 World Development 1139. 2 J Simpson and E Weiner (eds), The Oxford English Dictionary (OED) (2nd edn, OUP 1989), sub verbo ‘e-commerce’—‘Commercial activity conducted via electronic media, esp. on the Internet; the sector of the economy engaged in such activity’. 3 GATT 1947 text <http://www.worldtradelaw.net/uragreements/gatt.pdf> accessed 25 April 2012. 4 N Wirth, ‘A Brief History of Software Engineering’ (2008) <http://www.inf.ethz.ch/personal/wirth/ Articles/Miscellaneous/IEEE-Annals.pdf> accessed 25 April 2012. 5 Hereinafter referred to as the GATT. 6 Unlike goods that are tangible, software is intangible but encompass tradable qualities. 7 St. Albans City and District Council v International Computers Ltd [1997] FSR 251; Toby Construction Products Pty Ltd v. Computa Bar (Sales) Pty Ltd [1983] 2 NSWR 48 (to name a few). 8 UNCITRAL, Report of the Working Group on Electronic Commerce on its Thirty-Eighth Session, New York, 12–23 March (2001), A/CN.9/484 <http://www.uncitral.org/uncitral/en/commission/working_ groups/4Electronic_Commerce.html> accessed 25 April 2012, paras 114–18. ALTHAF MARSOOF 292 at M oash U niersity on Jne 8, 2015…
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The advancement of Information Technology has hastened the ability to disseminate information across the globe. In particular, the recent trends in &amp;#x27;Social Networking&amp;#x27; have led to a spark in personally sensitive... more
The advancement of Information Technology has hastened the ability to disseminate information across the globe. In particular, the recent trends in &amp;#x27;Social Networking&amp;#x27; have led to a spark in personally sensitive information being published on the World Wide Web. While such ...
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Today's technology has enabled internet intermediaries to greatly expand their access, storing and linking functions and provide highly advanced interactive online services. As such, these intermediaries are more fittingly described... more
Today's technology has enabled internet intermediaries to greatly expand their access, storing and linking functions and provide highly advanced interactive online services. As such, these intermediaries are more fittingly described as Online Service Providers (OSPs). This transformation has enabled businesses to utilize novel techniques in reaching relevant online consumers, while at the same time providing those consumers with relevant information and an increased freedom of choice. In the midst of these technological advancements, trademark owners have often sought to hold OSPs accountable for third party trademark infringement resulting from the infringing conduct of their users. Yet, in the Australian context, the doctrinal requirement that a trademark must be used 'as a trademark' and the wide section 123 defence available in the Trade Marks Act 1995 (Cth) that exempts those who deal with goods on which trademarks have been placed with the trademark owner's consent, gives rise to difficulty in extending the scope and application of the Trade Marks Act 1995 (Cth) to OSPs. The lack of any provision in the Trade Marks Act 1995 (Cth) dealing with indirect trademark infringement adds to the problem. In the circumstances, reliance has to be placed on common law principles to extend the application of the Trade Marks Act 1995 (Cth) to OSPs. Yet, the exact parameters of such an extension remain uncertain.
Research Interests: Business, Cognitive Science, Computer Science, Law, Intellectual Property Law, and 9 moreInformation Technology Law, Library and Information Sciences, Information and Communication Technology Law, Trademark, Internet privacy, Service Provider, Indirect liability, parallel importation, and Online Marketplace
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India and Sri Lanka, having embraced the new global economic wave have liberated their international trade policies incubating a supportive atmosphere within for foreign traders to setup business in the local markets. This new trend... more
India and Sri Lanka, having embraced the new global economic wave have liberated their international trade policies incubating a supportive atmosphere within for foreign traders to setup business in the local markets. This new trend though beneficial to the economies of both countries, ...
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In 2012, Australia became the world’s first nation to introduce plain packaging for tobacco products.This public health measure has been challenged in a number of fora, including at the WTO. <br><br>This chapter focuses on the... more
In 2012, Australia became the world’s first nation to introduce plain packaging for tobacco products.This public health measure has been challenged in a number of fora, including at the WTO. <br><br>This chapter focuses on the intellectual property issues of the WTO dispute, and specifically deals with the following three aspects. First, the chapter considers the WTO Panel’s findings relating to the important issue of scientific evidence, which determines the effectiveness of plain packaging measures. <br><br>Secondly, it sets out the Panel’s legal analysis with particular focus on the compatibility of plain packaging with the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Paris Convention, including the role of TRIPS Article 8 and the 2001 Doha Declaration on TRIPS and Public Health, in interpreting TRIPS provisions. Reference is also made to decisions of other domestic courts (indeed, after Australia, very similar tob...
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The Internet has become a crucial advertising tool for modern-day businesses. Increasingly, business enterprises are opting for online presence, and this phenomenon has significantly transformed advertising techniques. Consumers wish to... more
The Internet has become a crucial advertising tool for modern-day businesses. Increasingly, business enterprises are opting for online presence, and this phenomenon has significantly transformed advertising techniques. Consumers wish to spend less time and gain optimal results whilst searching for products and services on the Internet. In this setting, enterprising entities, such as Google, have sought to make maximum use of the need for online presence which has given rise to Internet advertising schemes such as Google’s ‘AdWords. The purpose of this paper is to assess the merits (or otherwise) of the recent ruling of the European Court of Justice (ECJ) in Google v Louis Vuitton. The analysis will compare it with the approach of courts in the United States and also draw on English jurisprudence. The discussion undertaken by this paper is topical given the recent decision of the French Supreme Court (Cour de Cassation) which appears to have followed the reasoning of the ECJ. The top...
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Dispute resolution takes an important place within the intellectual property (IP) framework. This chapter explores the intersection between the two and highlights some of the key challenges and issues that have emerged with respect to IP... more
Dispute resolution takes an important place within the intellectual property (IP) framework. This chapter explores the intersection between the two and highlights some of the key challenges and issues that have emerged with respect to IP dispute resolution. By focusing on both civil adjudication and alternative dispute resolution (ADR), the chapter seeks to inspire research in a broad spectrum of topics of practical significance. In the context of civil adjudication, the chapter focuses on natural justice and proportionality, which are fundamental principles of procedural law that have gained a renewed interest in recent times, especially with regard to IP enforcement. In the context of ADR, the chapter focuses on the issue of arbitrability and interim measures, which are not new concerns but continue to pose challenges for IP-related ADR.
The idea that the Internet is a space that cannot, or should not, be regulated has been proven to be anything but true. Yet, the unique characteristics of the Internet have made its regulation problematic – to which online content... more
The idea that the Internet is a space that cannot, or should not, be regulated has been proven to be anything but true. Yet, the unique characteristics of the Internet have made its regulation problematic – to which online content regulation is no exception. Although Internet intermediaries, that perform a crucial role in providing access to, storing and linking online content, are often best suited to regulate the transmission of unlawful content, legislators have adopted a protectionist attitude towards them on the basis that the Internet, and of course Internet free speech, can only flourish if these intermediaries are allowed the space and freedom to develop their technology. The Digital Millennium Copyright Act 1998 enacted in the United States is a reflection of this attitude – providing Internet intermediaries that offer hosting and linking services with conditional immunity upon them implementing a ‘notice and takedown’ scheme that allows copyright owners to have infringing content removed from the Internet almost immediately. However, although this conditional immunity scheme favours the growth of Internet intermediaries, evidence suggests that the implementation of ‘notice and takedown’ procedures by these intermediaries runs counter to the protection of free speech rights on the Internet – leading to a paradoxical situation.
Research Interests: Copyright and Free Speech
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ABSTRACT
This article critically evaluates the manner in which the blocking injunction has been implemented in the United Kingdom (‘UK’), the legal basis for which is derived from the European Union (‘EU’) legal framework. Unlike the extrajudicial... more
This article critically evaluates the manner in which the blocking injunction has been implemented in the United Kingdom (‘UK’), the legal basis for which is derived from the European Union (‘EU’) legal framework. Unlike the extrajudicial and privatised Notice and Takedown (‘N&amp;T‘) process, the blocking injunction is a court-supervised mechanism, and hence, avoids the key criticism levelled against N&amp;T. Yet, there are problems with the blocking injunction, in particular in the manner in which it is implemented. The article first demonstrates that, unlike in the context of copyright enforcement, the legal basis for the blocking injunction in the field of trademark protection is suspect. Secondly, the article posits that the procedure pertaining to the grant of a blocking injunction runs counter to the principles of natural justice – in that, neither the relevant EU directives, nor their domestic implementations, provide for the target website operators (i.e. the authors of online content), whose content is sought to be blocked, to be notified of, or joined in, the proceedings where injunctions are sought. As such, it is argued, that an important safeguard that has been incorporated into blocking orders, which allows affected parties to apply for a variation or vacation of a blocking order, is r rendered meaningless. Lastly, the article identifies four areas – i.e. circumvention, multiplicity of proceedings, barriers to legitimate trade and costs of implementation – where there might be problems in the future that may question the efficacy of this remedy.