Reports are that Oxford philosopher Derek Parfit died last night. Parfit’s philosophy is not well known or appreciated in my field of intellectual property, which is only just starting to absorb the work of John Rawls. This is something I am working to change, as the questions Parfit raised about our obligations to one another as persons–and in particular our obligations to the future–are deeply implicated in the policies intellectual property law is supposed to serve. Indeed, when I learned about Parfit’s death, I was hard at work trying to finish a draft of a book chapter that I will be presenting at NYU in less than two weeks. (The chapter is an extension of a presentation I made at WIPIP this past spring at the University of Washington.)
Parfit’s thoughts on mortality were idiosyncratic, based on his equally idiosyncratic views of the nature and identity of persons over time. I must admit I have never found his account of identity as psychological connectedness to be especially useful, but I have always found his almost Buddhist description of his state of mind upon committing to this view to be very attractive. So rather than mourn Parfit, I prefer to ruminate on his reflections on death, from page 281 of his magnificent book, Reasons and Persons:
If Parfit is right, then my own experiences, and those of others who have learned from his work, give us all reason to view the fact of his physical death as less bad than we might otherwise–and to be grateful. I can at least do the latter.
The Institute of Intellectual Property has graciously allowed me to share the slide deck from my summer research project on Japan’s trademark registration system. The slide deck includes the text of the presentation in the presenter notes, and you can download it here.
The photo leading this post was taken during my presentation at IIP in Tokyo. It shows me with my favorite visual aid: a bottle of (excellent) mirin bearing one of the contenders for Japan’s oldest registered trademark, Kokonoe Sakura.
A little over a year ago, I was noodling over a persistent doctrinal puzzle in trademark law, and I started trying to formulate a systematic approach to the problem. The system quickly became bigger than the problem it was trying to solve, and because of the luxuries of tenure, I’ve been able to spend much of the past year chasing it down a very deep rabbit hole. Now I’m back, and I’ve brought with me what I hope is a useful way of thinking about law as a general matter. I call it “Legal Sets,” and it’s my first contribution to general legal theory. Here’s the abstract:
In this Article I propose that legal reasoning and analysis are best understood as being primarily concerned, not with rules or propositions, but with sets. The distinction is important to the work of lawyers, judges, and legal scholars, but is not currently well understood. This Article develops a formal model of the role of sets in a common-law system defined by a recursive relationship between cases and rules. In doing so it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure of many so-called “hard cases,” and help organize the available options for resolving them according to their form. This set-theoretic model can also help to cut through ambiguities and clarify debates in other areas of legal theory—such as in the distinction between rules and standards, in the study of interpretation, and in the theory of precedent. Finally, it suggests that recurring substantive concerns in legal theory—particularly the problem of discretion—are actually emergent structural properties of a system that is composed of “sets all the way down.”
And the link: http://ssrn.com/abstract=2830918
And a taste of what’s inside:
I’ll be grateful for comments, suggestions, and critiques from anyone with the patience to read the draft.
Today was the deadline for me to submit a draft presentation on the research I’ve been doing in Japan for the past six weeks. The deadline pressure explains why I haven’t posted here in a while. The good news is that I was able to browbeat my new (and still growing) dataset into sufficient shape to generate some interesting insights, which I will share with my generous sponsors here at the Institute for Intellectual Property next week, before heading home to New York.
I am not at liberty to share my slide deck right now, but I can’t help but post on a couple of interesting tidbits from my research. The first is a follow-up on my earlier post about the oldest Japanese trademark. I had been persuaded that the two-character mark 重九 was in fact a form of the three-character mark (大重九) a brand of Chinese cigarette. Turns out I was wrong. It is, in fact, the brand of a centuries-old brewer of mirin–a sweet rice wine used in cooking. (The cigarette brand is also registered in Japan, as of 2007–which says something about the likelihood-of-confusion standard in Japanese trademark law). And as I found out, there’s some question as to whether this mark (which, read right to left, reads “Kokonoe”) really is the oldest Japanese trademark. There’s competition from the hair-products company, Yanagiya, which traces its lineage back 400 years to the court physician of the first Tokugawa Shogun; and also from a sake brewer from Kobe prefecture who sells under the “Jukai” label. Which is the oldest depends on how you count: by registration number, by registration date, or by application date. Anyway all of them would have taken a backseat to that historic American brand, Singer–but the company allowed its oldest Japanese trademark registration to lapse six years ago.
The other tidbit is my first attempt at a map-based data visualization, which I built using Tableau, a surprisingly handy software tool with a free public build. I used it to visualize how trademark owners from outside Japan try to protect their marks in Japan–specifically, whether they seek registrations via Japan’s domestic registration system, or via the international registration system established by the Madrid Protocol. Here’s what I’ve found:
The size of each circle represents an estimate of the number of applications for Japanese trademark registrations from each country between 2001 and 2014. The color represents the proportion of those applications that were filed via the Madrid Protocol (dark blue is all Madrid Protocol; dark red is all domestic applications; paler colors are a mix). The visualization isn’t perfect because not all countries acceded to the Madrid Protocol at the same time–some acceded in the middle of the data collection period, and many have never acceded. (When I have more time maybe I’ll try to figure out how to add a time-lapse animation to bring an extra dimension to the visualization.) Still, it’s a nice, rich, dense presentation of a large and complex body of data.
4,518,184 unique applications. From four different data sources. 74.71GB. All in Stata.
Now I just have to figure out what it all means. And I have two weeks to do it.
It has been a rough week of coding, processing, and de-bugging. But at long last, tonight I’m running the last two scripts I need to run to parse the last of the 330+ Gigabytes of data I received three weeks ago, and I’ve already tested them so I’m pretty confident they’ll work. By tomorrow, if all goes as planned, I’ll have all the data I’m going to be using on this project (a lean 60 GB or so) imported into Stata, where I can slice and dice it however I please. At exactly the halfway point of my residency in Tokyo, this is a major milestone.
The next step is some finer-grained cleaning and de-duplicating of this data, followed by some additional coding to structure it in a useful way (as you can see in the photo, I’ve already started sketching out my file trees). Then I’ll be able to describe and analyze what I’ve built. All of this will take time–the most primitive observation identifier in my data is the individual trademark application number, and it looks like I’ll be dealing with about 4.5 million of them, give or take. And each application number will have multiple records associated with it to capture lots of nitty-gritty trademark-y information like changing ownership and legal representation, renewals, divisional applications, goods and services classifications, foreign and international priority claims, and so on. Processing all that information takes time, and requires a lot of attention to detail. But today I’m feeling good. Today, I feel as confident as I ever have that this project is going to succeed.
So here is a first fruit of my research. The data I’m working with only goes back 15 years, but for any trademark registrations that have still been in force during those past 15 years, I have a fair amount of historical data. The earliest application date I’ve found in the data I’ve imported so far is July 31, 1890. That application– which became Japan Trademark Registration Number 521–is for the mark “重九”, which means literally nothing to me. But I asked around the office, and fortunately I have a colleague from Beijing here in Tokyo, who tells me 重九 is actually a Chinese brand–for cigarettes:
重九 translates roughly to “double-nine”, and the additional character (which apparently always accompanies the mark in its current use) translates roughly to “big” (i.e., “Big Double-Nine” Cigarettes). The mark was last renewed in Japan on March 28, 2015. Given that I’m here to study international aspects of intellectual property as they pertain to Japan, the fact that the earliest mark on record appears to be foreign is an interesting development.
At some point in 2014, without any warning so far as I can tell, the Japan Patent Office changed the file-naming convention for their digital archives. Whereas before the archives would be stored under a filename such as “T2014-20(01-01)20150114.ISO”, hereafter they will be stored under a file name such as “T2014-21(01_01)20150121.ISO”.
Catch the difference? Yeah, I didn’t either. Until I let my code–which was based on the old naming convention–run all day. Then I found out the last two years’ data had corrupted all my output files, wiping out 7 GB of data. More fun after the jump…