From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 1 February 2017

5 mistakes to avoid in IP student essays ... and not only there

When producing a piece of legal/IP analysis substance is of course important, but so is its presentation.

I have finished marking the scripts of my IP students for this semester and - like every year - there are some common mistakes that tend to be made repeatedly.

Apart from some confusion as regards use of something like "its" and "it's" here are the top formal [but also substantial!] mistakes that should be avoided [and yet appear also in texts produced by qualified lawyers ...]:

Ps: if you are wondering what the ECLI [European Case Law Identifier] citation system is, take a look here.


Birgit Clark said...

Ahh, but some are forgivable or debatable. :-)

*PLC uses ECJ still, as do a few other reputable sources.

*I had several of my recent articles edited to read "copyrighted works" (I had written "works protected by copyright"). These were UK editors and English language natives, which I am not. Difficult to argue for me, even though I think "copyrighted" is a little clumsy, it is not necessarily incorrect.

Mark Anderson said...

Should it be TFEU or TEU? The UK's Article 50 authorisation Bill makes no mention of the EU "Functioning" but perhaps this is deliberate!

Anonymous said...

Are you sure ECJ is wrong? The Treaty of Lisbon changed the name of the overall institution from CJEC to CJEU. The CJEU consists of two courts - the Court of Justice (which deals with preliminary rulings) and the General Court (which rules on actions for annulment). The Court of Justice has not changed its name, so 'ECJ' is no more wrong than it was before. The most accurate abbreviation would be 'CJ'. 'CJEU' isn't wrong, but it isn't precise. At least everyone knows which court you are referring to when you use 'ECJ'. I wouldn't consider it to be a 'mistake' that should be 'corrected'.

Birgit Clark said...

re Mark Anderson - the "functioning" comment just made me laugh out loud. :)

R said...

I'd like to agree with the previous comment. CJEU refers to the institution as a whole. Its constituent courts are the Court of Justice (CJ or ECJ) and the General Court. Prior to the Treaty of Lisbon the CJEU was called the Court of Justice of the European Communities (CJEC).

This article gives a decent explanation of the institution and its courts:

Mark Schweizer said...

I, too, thought "ECJ" was wrong for the highest European court. Turns out, as the previous comment notes, "CJEU" refers to the entire judicial system, not only the top court. From Wikipedia:

"The Court of Justice of the European Union (CJEU) (French: Cour de justice de l'Union européenne) is the institution of the European Union (EU) that encompasses the whole judiciary. Seated in Luxembourg, Luxembourg, it consists of three separate courts: the Court of Justice, the General Court, and the Civil Service Tribunal."

Which is why I started referring to "ECJ" again when referring to the court that is competent to decide referrals.

Anonymous said...

How many times I have I heard the term "copyrighted" and they mean trademark - I hate "copyrighted"

Birgit Clark said...

@Anonymous - I don't *like* copyrighted either. That notwithstanding based on my experience with editors of English language legal journals, the term is clearly acceptable. I doubt that that editors of IP legal journals mean trade marks when talking about "copyrighted", but then again... :)

Anonymous said...

The EU institutions use CJEU in short form when referring to the Court only(the higher one) since the Lisbon Treaty mainly because the "EU" part was brought in by Lisbon.Sometimes the term "the Court" is used more formally but the term ECJ has disappeared from use and when spotted seems to date the writer and is usually corrected. Whether this change needed to be done is another matter but this is now the consistent way to refer to the Court.The lower court is always referred to as the General Court in order to distinguish.

"Rightholder" anyone ? It is still not in any dictionary. "Rightsholders", or "rightholders" or "right holder". The institutions seem inconsistent of late on this one.It does not help that those responsible for final revision of texts seem unfamiliar with usage in the area and do online reasearch which is why they sometimes give the ok for words like "copyrighted" like your editors.

"Copyrighted" is simply wrong in a UK/EU context as it conveys a meaning which should be resisted and is untranslatable and "works protected by copyright" is to be preferred. As is "trademark" for EU/UK usage which should be "trade mark".No consistency here though.

What about "related rights" or "neighbouring rights"? Which is better? The EU has given up on the use of the latter and explaining what they are remains painful.

Birgit Clark said...

@Mark Schweizer I think ECJ is fine. I will continue to use it unless house style of a journal I write for dictates otherwise.

Anonymous said...

No not the "Infosoc Directive". I cringe when I hear that and I always correct it. Despite its title, it is about everything. The practice generally now is to refer to them by numbers but for that you need to have a good memory

Anonymous said...

The ECLI as with previous citations citation is not an absolute rule. Many persons writing to the Court make do with the strict reference -case number and date of judgment

Anonymous said...

As an examiner (and marker) for a well known IP course I make a plea to any student who reads this, as I make every year to my students. Neat or at least readable handwriting improves your case.

I am under no obligation to fight my way through scribbles and if they are too incomprehensible I will not do so. I try not to give up but have had to do so on a couple of occasions. Keep it neat.

Mark the Marker (an anon)

Copyright Witch said...

It is often not easy to establish what is right or wrong.

Take Advocate General which is also mentioned in Eleonora's list: the Lisbon Treaty refers to 'Advocate-General', whereas the usage of the Court is 'Advocate General'. Which one is correct? Both?

"CJEU": Is this an official or simply an informal abbreviation which one may use a gusto? It does not appear in the Treaty nor the Statute of the Court of Justice of the European Union and the Court does not appear to use it either. Those who use it, do so for different purposes: some (eg other EU institutions) use it to refer to the 'Court of Justice of the European Union', while others (eg many commentators/publications) take it as a shorthand for 'Court of Justice' as one part of the aforementioned institution. If there is no official rule regarding the use of "CJEU", why would it be more appropriate to refer to the 'Court of Justice' by employing "CJEU" rather than ECJ?

All this is confusing, but perhaps it could be remedied with the help of two simple principles:
Clarity: in ambiguous cases, explain what is meant exactly by the chosen abbreviation/reference
Consistency: then stick to it.

Anonymous said...
This comment has been removed by a blog administrator.
Sally Cooper said...

Back in the 1980s I marked papers for a course on "Wills, Probate and Administration" : there was an informal competition amongst markers to find scripts where the spelling was correct for " exercise the instalment option under the Inheritance (Provision For Family And Dependants) Act " : happy days !

Anonymous said...

I also find that there is a common misuse of the term 'trademark' rather the 'trade mark'. I blame Microsoft word for that one.

Anonymous said...

"Licence" as a verb.
"Trademark" (but I am OK with "trademarked").
"Jacobs" when you mean "Jacob" and vice versa.

Anonymous said...

Would anyone care to educate me about the difference between a Council Directive and a Council and Parliament Directive? I have never heard anyone use the latter term in full, yet all my favourite IP Directives turn out in fact to be Council and Parliament Directives. However, there are clearly Council Directives in other fields that are just Council Directives.

If the difference is not crucial, and the term "Council and Parliament Directive" not in common use, I would suggest picking up students for missing out "and Parliament" is a bit over-picky.

Anonymous said...

I tend to agree - it is not mandatory as in must to use ECLI.

Anonymous said...

Actually, the difference between merely a Council Directive and a Council and EP Directive is a crucial one (different powers most of which do not exist anymore as far as the Council is concerned). It is therefore wrong to refer to e.g. Directive 2001/29 as a Council Directive only when the co-legislators (EP and the Council) have both done. By the way on that one at the time it was the proposal with the most EP amendments ever tabled in the history of EU law making (that record has since been surpassed)

However, it is tedious to write the whole title of directives and a perfectly acceptable abbreviation is to say e.g. Directive 2001/29 without reference to either institution provided somewhere there is e.g. a footnote with the full title .

Anonymous said...

Lol the Brexit White Paper uses CJEU. One passing reference to IP in a graph or bar chart.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':