Rachel Claire Brady (Sutherland School of Law Scholar)
Supervisor: Dr. Cliona Kelly
Thesis Title: Intellectual Property versus Morality: Analysing the Role of Morality in the Regulation of European Patent and Trade Mark Registrations
Abstract: At present it is possible for European patents and trade mark applications to be refused from registration where the application is deemed ‘immoral’ by an intellectual property (IP) registry. This aspect of European Intellectual Property (IP) law is fraught with problems, not least because the legislation dates back to the 1800s the lack of guidance for interpreting the term ‘morality’ either in legislation, case law, or policy. This issue is compounded by the desire to secure harmonious European IP law notwithstanding the social, religious, and moral diversity between European countries. As recently as 2020, the Court of Justice of the European Union (CJEU) has grappled with the notion of ‘morality’ in the context of regulating IP rights. The existing case law of the CJEU and examination decisions of the registries have yet to establish transparent, and consistent guidance for IP applicants and their legal representatives alike. While academics have engaged with this issue in the past, the issue persists in practice and the gap between academia and industry remains.
The purpose of this project is to analyse the moral regulation of IP rights and how this phenomenon impacts right holders in Europe in a manner which has not yet been seen before. This project addresses this legal issue in a new light, employing research methodology wich is novel to legal research. In this regard, both a bottom up analysis (using empirical, qualitative methods) and top down analysis (marrying traditional socio-legal research methods with empirical, qualitative methods). These analyses will then be compared and contrasted to identify the discrepancies between the jurisprudence underpinning the moral regulation of intellectual property and the lived realities of industry stakeholders. This project utilises data and insights which have not yet been seen in the academic literature. In this regard, the project goes beyond typical legal research methodologies, also utilising methods typical of other social science disciplines. The data is coded and analysing using Thematic Analysis as a methodology, approaching the issue in a systematic and rigorous manner with increased translatability for future research.
Biography: Prior to embarking on her PhD, Rachel completed her BCL (Law & Society) in DCU (2016) and then began her LLM in UCD. Her LLM specialised in IP and IT law, with her dissertation focusing on the patentability of human embryonic stem cell patents in Europe under the supervision of Dr. Cliona Kelly. Upon graduating from her LLM (2017), Rachel began her traineeship as an Irish and EU Trade Mark and Design Attorney with Ireland’s largest IP Law firm. Under the mentorship of Shane Smith, Rachel qualified in the spring of 2019. Rachel has a proven track record in securing academic funding. She was the first ranked candidate for the UCD Sutherland School of Law Doctoral Scholarship in 2019 and was subsequently awarded the Irish Research Council Government of Ireland Postgraduate Scholarship in 2021. Rachel has experience in tutoring and lecturing Contract Law. She has delivered guest lectures in Intellectual Property as well as working as a teaching assistant on this module. Rachel has also published her research in well regarded, peer-review academic publications.
- “I went to see Fack Ju Gohte and I didn’t even get a lousy t-shirt” (2020) 18(5) Journal of Intellectual Property Law & Practice 629;
- “Book Review: P. Torremans (ed) Intellectual Property Law and Human Rights (4th Ed, Wolters Kluwer 2020)” (2021) 43(9) European Intellectual Property Review 623
- “Research Ethics and the Patent System” (2022) 44(4) European Intellectual Property Review 209 (Co-Authored with Dr. Cliona Kelly)
- International Encyclopaedia of laws: Ireland - Intellectual Property Series(2nd ed. Kluwer Law International) (forthcoming) (Co-Authored with Dr. Cliona Kelly)
- “Silent or silenced? An empirical analysis of how Article 7(1)(f) E refusals impact the right to freedom of expression of Trade Mark Applicants” Society of Legal Scholars (SLS) Conference 2022, Kings College London, 7 Septmeber 2022
- “The Future of Morality and Ordre Public Patent Examinations in Europe: Can Lessons be Learned from Trade Mark Law?” Patent Scholar’s Network ‘Works in Progress’ Symposium 2022, Maynooth University, 8 July 2022
- “Research Ethics and the Patent System” (Co-Presented with Dr. Cliona Kelly) Patent Scholar’s Network ‘Works in Progress’ Symposium 2022, Maynooth University, 8 July 2022
- “An empirical analysis of the CJEU’s morality-based decision making in European Intellectual Property Decisions” ATLAS Agora Summer 2021, Erasmus University Rotterdam, June 2021
- “What is Shaping the Jurisprudence of the CJEU in Morality-Based Patent Decisions? An Empirical Analysis” Patent Scholars Network, PhD Showcase, 24 June 2021
- “Last one to use is a rotten egg! Court of Appeal issues its decision in Galway Free Range Eggs Limited v O’Brien” World Trademark Review (April 2019) available at < https://www.worldtrademarkreview.com/enforcement-and-litigation/last-one-use-rotten-egg-court-appeal-issues-its-decision-galway-free> (Co-Authored with Niamh Hall)
- “Diesel fumes: latest instalment in long-running proceedings between Diesel SpA and Montex Holdings Limited” World Trademark Review (October 2018) available at < https://www.worldtrademarkreview.com/enforcement-and-litigation/diesel-fumes-latest-instalment-long-running-proceedings-between> (Co-Authored with Shane Smyth)
- “Don’t fall for the scammers! Swedish prosecutions show the importance of remaining cautious of suspicious invoices” Lexology (April 2018) available at < https://www.lexology.com/library/detail.aspx?g=3231fa58-d700-4ecb-bc94-8302ecfda482> (Co-Authored with Niamh Hall)