[Solmu]

I think Hungry Jacks is a better name anyway

I agree. I'd much rather eat at the establishment of a humble Jack who shares my base hunger and the desire to eat some simple fare, than an imperial ruler who seeks to create a lasting dynasty through the conquering of my prospective foodstuffs.

 

[Solmu]

I imagine he's married to Dairy Queen.

I'd much prefer a Burger Prime Minister, democratically elected by pickles.

Exactly. I mean who appointed this monarch anyway? Maybe it's time for a revolution! Ketchup in the streets! Coleslaw splattered to the rafters! DOWN WITH MEAT BASED FASCISM!

As for Common Law trademarks... Most law is based on codifying principles, and he who has the most formality wins. Common Law basically goes against that, as it's not codified - it's just a flimsy series of precedents set by judges who were forced (or chose) to make a decision outside of the scope of the simple written law. Judges are meant to be able to interpret the law - not just because it isn't always clear, but because if societal values are changing then the role of the court needs to change with it. It allows cases to set a precadent for the law to slowly move away from past values without having to pass new legislature. It also helps indicate which way legal trends are headed so that the legislative branch can promulgate appropriate laws (i.e. not just take a wild guess at what might be required for the ever-changing body of law). It's especially useful when dealing with a new area of law that wasn't previously accounted for, but not so useful when dealing with areas that have their own well established laws and precedents (i.e. formal Trademark law). All common law is though is case history and precedent set by judges. Since it's not codified, a judge can't very well be making a "wrong" decision by ignoring it in favour of codified laws. I think we're already seeing a trend away from respecting a priori rights, and more to those who follow due process (or have the biggest bank account as the case may be). Unlike actual laws, Common Law is only binding if a judge continues to make it so. You shouldn't rely on a legal precedent in running your business, but rather follow the real law (if they're in conflict you've got a problem, but most of the time it's only a matter of common law maybe saving your butt if you've been lazy, versus never really having to concern yourself with it because you did things properly). Common law steps in where the written law is inadequate, but often that's because the written law overlooks the fact that nobody outside of a judge and the occasional lawyer pays any attention to it - those who do pay attention will ultimately profit over those who don't though ("Those who live by the sword will be shot by those who don't" is essentially the principle here). The law is not simple unless you choose to oversimplify it. The suggestion that judges overcomplicate things out of ignorance of the law is absurd. For one thing if it was all so clear cut then they wouldn't be making controversial verdicts - there'd be no room for them making an error. They may make judgments that we don't like, or make decisions based on political motivation - but they are not ignorant of the law. By definition, if a judge makes a ruling he is right until such time as the decision is overturned by a higher court. Common Law being what it is though, I'd never rely on it. I'd turn to it if I needed it, but given it's inherent unreliability I'd aim to never need it in the first place.

And why is it we never hear of the rest of the Burger Royal Family anyway? I don't think we're getting the whole truth on this important issue! The public has a right to know!

 

[Solmu]

Before the Lanham Act, it was just common law, and that term for an unregistered mark stuck(common law).

Ah. It's frustrating the way terms can stick like that and cause confusion later on when they're no longer as accurate.

And I don't know why you say that believing judges complicate things out of ignorance of the law is absurd. I don't know how it works in Australia, but judges here aren't infallable or omniscient.

You're right that "absurd" was a poor word choice and that it does happen, but I don't think it's common let alone normal.

There have been a couple of relatively high profile cases here recently along those lines - one where a senior judge was ignorant of some important laws that ended up biting her very badly, another where a judge overstepped his bounds out of political motivation and passed down a sentence later overturned.

My point was that while it does happen, it's not common. It's a judges job to know the law they are interpreting, and for the most part they're pretty good at it. I think the problem is less often with judges re-interpreting things, and more that it becomes necessary because the law itself lags behind public opinion on an issue.