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Solmu,
You are correct about most common laws not being codified, but this does not apply to what I have been referring to as "common law trademarks". A better term would be unregistered trademarks because the same law that was enacted to protect registered trademarks also protects unregistered trademarks(in the US). It is called the Lanham Act. Before the Lanham Act, it was just common law, and that term for an unregistered mark stuck(common law). But, the Lanham Act sought to address the common law problem and make it a "codified" law. So judges can make a "wrong" decision if they go against what this law says. 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. There were cases here where bench judges were charging motor vehicle offenders unlawful fine amounts. There were hundreds of cases where people sued because it was unlawful for the amounts to be given to a person unless a jury fined them the amount, not a judge. When the judge was asked about it, his defense was that he didn't know that he couldn't do it. The people who were overlyfined easily won there cases. Because the Tennesse law "clearly and simply states" that an offender can not be fined an amount over $50 unless a jury imposes the fine. Simple law, judge was ignorant of it. It was also very controversial, because the judge was ignorant and complicated it. His own admission.

I think the other foods (fries, chicken sandwiches) should take up arms and revolt! Overthrow the whole kingdom!
 

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Comin'OutSwingin said:
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.

Comin'OutSwingin said:
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.
 
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