4.

13 第二节

We decided to go 35 as we discussed that deals with the conformity of the good and. Here we

sold. Yes, last last class. So the. And this. For the particular purpose. Culture distinguishing. I'm

going to make dental if I want to find a bunch of phones present. These phones originally did not

have a design for like blind people I wanted to aid blind people. This request is a particular. Or

just my request for the quantity of the goods? Quantitative. Watch. Yes uh no actually that could

be i see your point no it like the ordinary you insert for Brian paper then actually if you wanted to

use for this purpose, so you want to handle these forms to prime paper and people, sorry. And the

requirement is that the phone should be able to operate that regard that it can be actually a

particular purpose. It depends on how the particular. Because being honest, I don't know if these

phones are like default set as they are usable by people as well, are they? It really depends actually

on the particular product we are talking about. If these phones are already set that they can be

usable by client people as well, then it wouldn't be a particular purpose. If it's something that is a

special feature, would be a special feature and would require particular attention by the seller that.

The goods would comply with this. So it's not like the ordinary product ， then it would be a

particular purpose. So actually to assess what is particular it's not so easy. Oh yes. So. So it's not

just it's not that exact it's very much depends on the circumstances of the case. I didn't talk about

that, but you can see it here. The slides, if you come down to the slide that what can be taken into

account when we assess compliance under Article 35 to end whether it fits for particular purpose

or not. There is a whole list of different circumstances that we have to take into account. Then the

actually assess the so if the goods, the ordinary goods do not. Provide for this possibility that they

could be used by buying paper. Then basically it's not. And. Like the quality requirement if we

especially want to use it. Yes, like handing over to blind people, then it would be a particular

purpose if we actually just want to order goods that we do not want to like. For example, because

we work in an institution where with which is. Um. Specializing in teaching by the people, let's

say, and we want to use the phones in these institutions for this purpose, then it will be a particular

purpose if for example. It's a it's a repair. So we are in Thailand and then the order phones and we

expect that these phones will be also usable for many purposes among others for this purpose that

blind people could assist in that regard. It might be actually different maybe in that regard it.
Would be a quality issue under the first paragraph that if it's fit for this ordinary purpose, like it, it

is sellable actually. So there will be people who will sell a bike, sorry this phone from us, then it's

fine. But if it's especially for these. People for this institutional right, but when it is clearly

communicated that it's a very special feature that we want to be present because this is what we

want to use it for them, it would be a particular purpose that could be a particular purpose. I don't

understand about that. First thing you need should be according to the specific situation and

sometimes the article. And B1 and two seems in is like. Can be used together. Use it again. I see.

Mm-hmm. Yes. So then basically if we if we look at this article certified one is will not be the

article certified one that says this general standard. This general standard that what is the

obligation of the seller? The seller must deliver the goods before this buyer and then off because

of the five. Two actually. Provides that unless the parties have every other device so basically

means that in the contract they can say otherwise, but if they don't then when we assess that

whether the goods that were delivered were in conformity with the contract as to one quality and

description and then we have to look at these standards. If the contract is clear, so if there is a

description, a detailed description in the contract that the seller has to deliver, then basically we

will not apply that this because then the parties agreed otherwise and then we know exactly what

they agreed on, but for example when they agree on. For example when they agree on streams that

they would purchase, the buyer would purchase streams or maybe like phones in general then. So

when there is no exact specification for the route in the contract then we apply these standards and

this says that whether under these standards it conforms the contract or not. Yes, there. Any other?

Questions maybe. So we have to talk about this, but now I will not talk about it again, but if you

want, if you have any questions on that. If you to these questions, if you look at the slides when or

when you look at the slides, you will see that like for assessment whether the goods that are

delivered conformed with the contract under article certified too. There are a lot of things, there

are a lot of considerations circumstances that. We have to obey. We can take into account in order

to assess that what is actually the standard that we have to apply the ordinary purpose standard or

the particular purpose standard, and also to understand that what is the particular purpose or what

could have been the particular purpose. In that. In that transaction. So maybe sometimes

something is an ordinary purpose, but in in other circumstances, in other case, that's a particular
purpose. OK. And? Again, that's somehow general what we can see now. So we saw them that

under article certified 1/2, what is the obligation of the seller that what good the seller has to

deliver in order to be in conformity with the contract.

And the Convention the seller, as you see, is not liable. Do you not be liable? If actually at the

time of the conclusion of the contract, the buyer knew or couldn't have been unaware that the

goods that will be delivered or would be delivered would not meet that requirement that we can

see on the 35 one or 35 two. So basically again this is something. That is the some extent, the

general principle in in this CIG or in the CIG that actually if the other party knew were couldn't

have been unaware of something, then the first party will not be held liable or cannot be held

liable for. So in this case it means that the the seller is not liable for his nonconformity if the other

party, the buyer, you or couldn't have been unaware of such lack of conformity.

And the time, the time when the passing from the seller to the buyer, and then basically this

question is regulated again in the CISG there. The parties can agree on different sets of rules, and

the incoterms in this regard that will be or can be relevant.

The handling of the document and the documents that if the seller handled the document before

the date it was due and there were defects, then basically the seller could cure the defect. This is

the same here as well. So if the seller actually delivers before the date of delivery, then basically

the seller can remedy this defect, can cure the defect, unless that would not cause unreasonable

inconvenience or unreasonable expense for the buyer and also the buyer has the right to retain the

right to claim damages. So this is the principle that we saw order, the approach that we saw also in

the context of the handing over the documents as well.

Article 38

Already then, when we listen to the CIA's on this issue, came up this inspection, this examination

of the good, and this is what we. Do you not talk about, so when the goods are there, you learn to

the buyer, then the buyer has a kind of obligation to inspect to examine the why I said that it's a

kind of obligation because it's not like a direct obligation of the buyer that would have like

sanctions if the buyer would not. Comply with the supervision, but it's an obligation or it's actually
something but the buyer should do in order to be able to actually enforce remedies, to claim

remedies for non compliance to the side of the side so basically it's an obligation, but not as an

obligation as we saw it in Article 30 and for the buyer 53, but it's something what is important for

the buyer to do if the buyer wants toAdvanced later claims for remedies due to lack of conformity

of the goods. Again BC I see that maybe the buyer fails to do this, but if the seller knew or wasn't

couldn't have been unable. For this lack of conformity, then, the buyer will not lose its stride. Like

the principle of what we saw earlier, that one party is aware of the fact and then the other party

who should do this or that will not be deprived of this possibility to advance certain plate. So this

examination of the goods. So as you can see it's an important, it's a very important issue. There is

a CIG. Advisory Council opinion, which deals with this question. It's CI Advisory Council

opinion two. So maybe that also signals the importance of this examination, because the second

opinion, the second let's say most most important issue that came to the mind or came to the table

of this Advisory Council, so very briefly and then we will talk about it more in detail, but like the

idea is that the buyer has to examine the rule or make. Like examined by by someone else. So

there has to be an examination of the good. And then if it turns out that because of this

examination and thanks to this examination that there is a lack of conformity in the goods or the

goods, then the buyer will have to notify the seller of this lack of conformity. So it has to send the

notice to the seller and then actually in this notice the buyer also has to indicate what kind of

remedy it would like to request or maybe within a reasonable time after this notice was sent to the

seller as the buyer have the obligation to notify the seller of what remedy it would like to use and

then basically. Yeah, this is like what I said. This basic structure of this examination or rises. So

when we look at the CIS then in this regard, we see that it talks about the examination, for

example, but it doesn't define what examination is. What would it mean examination for example?

Is this shipment we look at it? Is it examination or not? Or for example when the examination is?

Based on some kind of sampling that what is the proper examination home? For example, it's

about frozen shrimps, shrimps and the good is frozen shrimps and what portion of the daily word?

Actually, is it 1%, less than 1% more than one person? How can we take the samples? So basically

it's not regulated from this point of view in the CIG. What does that mean that here in this regard

actually the custom, the usages will be very important in the particular? Industrial in the particular
field of trade. So that's why, again, if you think about Article39 thirty nine of the CSG, which is

about the role of usages and this kind of Brexit, that will be especially relevant here that when can

we say that it was another quiet and practical? Examination. The CIA debates also that when they

tested their place and what happens if there is no proper examination. As I mentioned that there is

no like direct sanction for not doing this examination for the buyer, but it has consequences and

then basically. The consequences that the buyer might not be able to advance certain claims as to

remedies. So if we now look at the relevant provision of the CIG, this is Article 38 of the CIG and

the very first subsection of the CIO of this CG. Article 38 provides. That the buyer must examine

the goods or cause them to be examined within as short a period as practicable in the

circumstances. So here we already see that it's a bit different than. Than what we saw earlier in

terms of how. And tell you it's, I've said in the CIG because usually what is the time period side by

the CIG, It's not the reasonable period of time that is within a short period as possible in the

circumstances, because the practicability is very important here, it doesn't require any

immediate examination. We have to take into account the circumstances of the case and then

based on that we can decide that what is practical period of time to examine the goods.

CISG 的前身：海牙公约 When we talked about on Tuesday about The Hague Conventions, Like

this police and the rules this GATT conventions were about. Uniform local mentions right? This

second mentions it. These were the sort of predecessors to the CIS league right from 64. These

two people mentioned the uniform law on contracts for sale of goods and the uniform law on the

formation for the contract of sale. Right. And then basically. Because if you do not be enough, I

do not talk about it again. Not that much. So these two commendations were like the first of two

commendations that deal with this unified law. As we saw that these are not that widely adopted

conventions because of many reasons. One is that that was the idea that they were more based on

this continental approach and that means that it was unacceptable for many states to join. And also

when the state actually wanted to join the CISG had to denounce these two echo mentioned. But

these are very important pieces because these serve as a kind of predecessor to the CISG. These

were the first two international conventions in this field in the. Unified says little substantive law,

and the CIG or the drafters of the CIG learned a lot from the failure of these two people mentioned

that one thing. The other is that even if there are differences, like for example in this context
between the heat conventions. And the CIG. Yet when we look at the CISG, we can see that some

provisions of the CGI based on this here Convention. And so when we apply and interpret the ciig,

we can look at it like a kind of draft history or drafting history or sources for the drafting history.

For the city so to interpret to understand the CIA why I said that for example in this context it was

different because the Hague convention said in the sense that promptly so it's not within a short

period of time ， as well practicable or a reasonable period of time. So it require the prompt

examination which was the case in many national laws are very strict requirement that the

examination has to be prompt examination, which if you think about it can be reasonable from the

point of view of the seller, because it creates certainty. Why? Because then the seller will know

that, OK, I supply the goods, you receive the goods, so now you can tell me if it's good or not, if

there is lack of conformity or not. So why should I in this uncertainty for a period of time because

I don't know that whether you think that the good is in conformity or not with the contact. So

maybe like after one week, two weeks or three weeks, we receive notice saying that,but the rules

that you delivered like three weeks ago. Do not conform to the contract, so will be sending. So

there can be some kind of argument that by this from prompt examination can be accepted on the

one hand, but on the other hand we also see that it's not necessary practicable from a business

point of view under any. Because especially for example, the goods are not to be used by the

direct buyer, but it would be used by another person. So the buyer would transport these goods to

the other person and this other person. We use this or for example, it's a machinery. And the

machinery is not to be used for a certain period of time after the purchase, but later because the

machinery is to be built, I don't know. This is the building. So the machinery is supposed to be

built within the building and then it will turn out only when actually it is in use. In the beginning,

whether it's operates properly or not. So it might be not practical to examine always the goods like

the moment when it is delivered. So basically that's why the CIA follows his different approach

than what we can see or could see. Echo mentioned, so it's not a prompt examination. It is a short

period of. Should be a relatively short period, but it's not prompt, it's not. With this possible, so it

it doesn't require like every effort to make it as as soon as possible within as short as player does

things possible. But what is practicable under the circumstances, keeping in mind that what is

practicable from an economy, from a business session or point of view. So this is again something
what is we can see in the CI, just kind of general principle that. Like the CIA agents to ensure that

whatever would happen in the in the contract or in this contractual management then basically that

would reflect business rational reasonability, business practicality in this sense. So that's why it is

not. It's a short appeared as possible or contest I mentioned but like practicable. Um, in the

circumstances. And if you look at or when you look at. The second subsection and orders third

subsection of this 38. There you will see that basically if the contracting was carriage of goods,

then this examination can take place when the goods arrive the final destination. Or if the goods

are redirected in transit or dispatched by the buyer without having actual reasonable opportunity

for examination, then basically it is possible to have this examination at the time when the goods

arrive at their new direction or this destination, but of course it cannot be a an unreasonable risk or

burden for the seller either that OK, then the buyer will examine the good so because the seller

who also deserves some kind of certainty as to whether the transaction was proper transaction so it

was properly fulfilled and the goods were properly delivered, not so of course there is again what

you can see here in this Article 38 this kind of balance. Between these two parties, so under

Article 38, then the time when the examination has to take place is within as short period as

practicable in the circumstances we have to take into account. By the circumstances of the case,

it's not an exact date, so we cannot say some courts, state courts try to set like this exact abstract

standards like 14 days, 21 days, seven days, things like that. But it's not like that. It really. And

actually on the circumstances of the kid, on the type of the wood, on the nature of the wood, if it's

for example perishable good, then of course this. Is shorter. If it's something that for example I

mentioned earlier machinery, it can be longer this. So it really depends on the circumstances. And

I hope that OK. And the other thing which is important here, as I mentioned, is it's not about the

possibility when the buyers only has the possibility to examine them, but when it is commercially

practicable to examine the good. If the goods are sold or transported, then basically this

examination can be conducted later.

Article 39
And the Article 39 talks about the notice simulation you know previously. Like the basic structure

of this system is an examination notice. And in the northeast, the buyer has to indicate the lack of

conformity, nature of the lack of conformity, and also the possible remedy that the buyer might

want to resort to. So this article is 39 is about this notice requirement because it says if you look at

it or when you look at it, that actually the buyer loses the right to rely on this lack of conformity. It

doesn't send a notice to the other party to the seller within a reasonable period of time as to

actually this lack of conformity and in this notice, and that's a question for interpretation and case

law might be different from this notice that the buyer sends to the seller based on this lack of

conformity should specify the nature of the lack of conformity and also should refer to the remedy

that the buyer want to actually in both. So for example, earlier we saw that the buyer can request

substitute goods, right? It's possible if it's a fundamental breach of contract. So for example, if the

buyer notices that upon this examination that the goods are still not confirming that this non-

conformity will amount to 接近 a fundamental breach of the contract, then yes the buyer could

avoid the contract. But the buyer doesn't want to avoid the contract because the buyer wants the

goods. So once the product from the seller. So then basically the buyer can request substitute

goods, but when the buyer as the default would require this substitute ，would like to indicate this

claim that the buyer has sold that would like to resolve this problem is in this notice. So when the

buyer notifies the seller of this lack of conformity, the nature of the lack of conformity and also

this remedy that the buyer wants to resort to, establish the indication of the remedy, basically, it is

also possible that the buyer would indicate it later within a reasonable period of time, but the

default rule is what I said. And here we see that there is an additional time period again like. The

delivery takes place. And then the examination has to be conducted within esoterica, stackable in

the circumstances, and then from the moment that actually the buyer learns that there is a lack of

conformity, the buyer has a reasonable period of time to notify the seller of the lack of conformity

and the possible remedies, this nature of the lack of conformity, so it doesn't require the buyer like

to hire an expert and to send the seller an expert opinion that why it's not comply with the

particular delivered product. So it it doesn't require this kind of expert assessment from this point

of view, it requires to indicate the seller that what's the problem with the particular. The buyer

believes that he does not comply with the requirements under the contract, so it doesn't require
very detailed description of the defect. It doesn't require expert opinion. Or anything like that from

the buyer, because the idea is that the seller should be notified of the problem. The seller should be

notified of not only the existence of the problem, but also the the nature of the problem that

generally was the problem or what the buyer believes the problem is, and then the seller would

also have the opportunity to react to this or to be with this situation. If the buyer doesn't send this

notice to the seller, then actually the buyer can lose its right to rely on this lack of conformity.

Actually, the CISG doesn't operate with like this exact deadlines except for here. If you look at it,

there is this two years failure that in this Article 39, subsection 2 it says it in even the buyer loses

the right to the left of conformity of the goods if he does not need the seller notice there at least

the period of two years from the date of which the goods were actually handed over to the buyer.

So basically that also suggests that this whole time period like for the examination and for the

notice might be actually if we look at it might be actually long. So it's not like. 123 days or one or

two weeks, but it can be actually longer, so depending on the circumstances of course. When this

time period starts for the Northeast, so when the buyer as we discussed, the buyer will have to

send a notice to the seller and there is a reasonable period of time for this notice sending this

notice. So what is the starting day or the date for this is basically when the buyer discovered or

ought to have discovered the lack of conformity, which is basically if we look at the good and it's

clear that it's not what was ordered, so if it doesn't. By any specific examination, then already by

just seeing the wood it can be possible to say that there is a lack of conformity. Then it is of course

if it requires some kind of specific examination. So for example if the buyer looks at the blue then

it seems good, but. Yeah, basically, let's say it's about frozen food. So part of it has to be different.

That's the quality of the food. Then basically, of course, it's something that is a bit more specific

examination. So it means that this time period commences, the time when actually this devastation

takes place and the testing of the product takes place. So basically there are these two time periods

in this regard, but I mentioned so if it is evident the lack of conformity just by looking at the rules

that yes, they do not conform. Then it's actually. Not really subject to many discussion that what is

then? Within a short period as practicable, because immediately it is visible that it's not

conforming. So basically that's like the examination in this sense, and then the reasonable period

of time the game starts running from the moment that it becomes evident that it's. Performing. So.
If this is not the case, then basically these two separate periods and like the one for the

examination of the Article 38, this is the the commercially practicable time period for examination

and then the notice. Time period is reasonable period of time. So that's again start from the

moment that the buyer becomes aware of the l of conformity for all to have become a better lack

of conformity, and runs, depending on the circumstances to. So these two time periods are, as you

can see, to be distinguished and we have to pay these separate under the CISG as to the

reasonability of the time period for giving notice, very similar considerations can be taken into

account and what we saw earlier. For example, the nature of the defect, the certain or the

circumstances of the case, of course, and within that nature of the defect, the parties. Situation

trade usages, relevant trade usages. So basically, again, it depends on the circumstances.

Sometimes it can be the same day actually, if it is that kind of product because earlier received.

For example spanishburg goods. So if it's perishable good, then it should be a very short period,

because on the other hand it might be also important for the seller to do something with this good

to use it to somehow mitigate. Actually also the defect or the rotator, There is a mitigation of loss

or an obligation on the parties, mitigation of flows that's also generally in national contract laws as

well. So how does that operating this context, but something has to be done even if it's not like for

example the strawberry that we ordered because it's, I don't know, it's not strawberry, but

BlackBerry, let's say it’s so different kind of food. So this is not what we are. It's a lack of

conformity. It's to some extent we can say it's perishable. So of course it requires not necessarily

instant notice, but actually quite. Prompt notice in the sense that in that case this reasonable period

of time is not that long, because then the other party should be able to do something with this if we

request substitute goods to do something with these goods that were delivered. But sometimes it

can be actually longer when it's for example about complex. Machineries. Then of course it it it's

not only the defect itself that is identified or might take time to identify, but also the kind or the

nature of the defect because I mentioned earlier in this notice the buyer has to notify the seller of

the nature of the defect as well. So it's not necessary sufficient just to say that it's missionary

doesn't work, but it's something more that what's the problem with that and maybe that's subject, I

mean in order to find out the problem is with that particular machinery that takes their time. It

really depends on the circumstances of the case. So it's a case by case examination that what is or
what was reasonable period of time. Need that but. Say, mention that this examination and and

identification of the defect does not require expert. There is no requirement that it should be based

on an expert assessment. So what it means from this point of view is that for the buyer as you see

that the notice should be based on the information over the buyer. So it's for the buyers and for the

buyers assessment to say that, OK, it doesn't work, I will look at it and tried it, it doesn't work. It

seems that this might be the problem, but that might be a problem, but it doesn't require next step

for being, yeah. As you can see, if it describes like the the symptoms, that's that's enough so that

that's not the symptom that it doesn't work, but maybe it depending again on the circumstances, I

see what it means that it does not require special expertise or special knowledge from the buyer.

It's like this ordinary buyer.

But of course if it's for example about the particular purposes you ask or mentioned earlier when

we assess this conformity. Lack of conformity in the context of the particular purpose. Of course,

that's a bit more special in this sense, because then the lack of conformity is not that the woods is

not conforming to the ordinary purpose of the wood, but like this special particular purpose. Of

course, in that regard it requires some kind of special isolation in this case. Why it does not

conform to this particular purpose. So it's it's really about the the very circumstances of the case.

And again, here we see this principle that we have already seen earlier in other contexts that. Yes.

The buyer has to examine the goods. The buyer has to give notice to the other party if the buyer

doesn't examine the goods. If the buyer doesn't give notice to the other party, then the buyer might

lose its right to rely on this lack of conformity. But what if the seller couldn't have been

unavailable this level for pharmacy. So basically again for this balance of interest and for this

reasonable active what we see is that the CIA provides that, OK, maybe the buyer didn't examine

the good, maybe the buyer didn't give notice, but the seller knew or couldn't have been unaware.

You know this lack of conformity so which basically means that the seller cannot rely on this lack

of examination of lack of or lack of notice, proper notice under 3839. So it's again about. Like

what we saw earlier that it's not protecting one over the other. It's about treating the seller and the

buyer equal and then basically trying to find a balance as to the interest of these to the parties. I

see it's the same price, sorry. And. We will see later that what remedies actually the the buyer can

resort to and remedy is this reduction of the price, so it's not renegotiating the price. Uh, with the
seller, it's about reducing the price. So if the buyer believes that the goods that were delivered less

volume than what was actually contracted for, then the buyer can reduce the price. Of course, that

can open the door to two disputes about this compliance, lack of conformity, the difference in

terms of the value of the goods ordered and the grocery word and the ratio of this price reduction,

but basically means that the buyer has this right to reduce the price. In this case we will see it later.

We are still in in the sellers obligation. We saw that it has the seller has three obligations. What

were these three obligations? So the goods has to deliver the goods and over the documents

relating to them and transfer the property in the goods. So basically we are still within that and the

goods that the seller has to deliver the good.

And in that regard, we saw that the time of delivery1, the place of delivery2, conformity of the

goods3, and then this is the 4th important part is to serve part of that What's third party claims4 and

rights? When we talked about the transfer of property in the goods, then we saw that the CISG

doesn't affect it. Transfer of property does not take the property, but it has actually the provisions

on the obligation of the seller to transfer to to deliver the goods in a way or in a manner that the

buyer will be able to actually use the goods as the buyer would be the owner of the building. It

doesn't mean that actually the seller would under the CIA transfer the property in a sense that the

property would be transferred because that would be actually subjective national rule as we saw

what the seller has to deliver the goods in a form that would not prevent actually the buyer to

acquire propert. This is the general rule what we see in Article 41. This is actually the case in

national laws as well. If we think about the obligations of a sales contract that the seller has to

deliver the goods free for many third party right or claims that will prevent the buyer to acquire

the property. It doesn't talk about good faith in this regard, whether the buyer should act in good

faith or not or anything better because that's a property law issue in this case.

I think 42 is about the very special and kind of right and intellectual property rights, intellectual

property law like patterns, trademarks, and design. All these methods. Why is it special? Why

might there be a special provision on intellectual property rights? Because many times, actually,

these goods are covered by different forms of intellectual property rights, for example, the form

that you mentioned. What kind of intellectual property rights forms of protection can be relevant
in the context of the phone? For example. Patterns and the design of the outlook. So, patterns can

be relevant as to the technical elements that are embodied in the design like the outlook of the

particular phone. So the design in the European Union and many countries that. Clear protection

in the United States called design pattern. But like the design, what else? Trademarks can be also

relevant. Usually, computer programs are considered to be literary works, so they are protected as

copyright works. So then basically copyright protects them. But on the other hand, there is also an

interest to somehow bring the computer software under patent protection, I mean for the

developments, Now this question seems to be a distance from the CIG because it's more likely to

actual property. That protection usually lasts for how long? Copyright protection that last quite

long because usually that's long last for the life of those like 50 or even 70 years. So that's that's

very well if you compare this term of protection better than patent protection. The protection was

the usual length of patent protection. We're not usual. So that's actually the protection. 10,20

years. So it's shorter one thing. The other is that if, for example, a computer program is protected

under copyright. We cannot copy the problem, but if we actually managed to reach the same result

through a different program when we run the program on the computer, then we are fine from

copyright point of view, because that's not a breach of copyright. That's not a copyright.

Impeachment and the real value of a computer program is required. It's not necessarily how it is

written, how it is expressed in the source code objective, but what is the result that we can

achieve? And we run this computer program on the computer on an apparatus and this is

something what the result. Insert what we can achieve when we run this program on The

Apprentice. It cannot be protected by copyright or under copyright. What matters you could

protect this. So if we formulate the pattern claims like those would be directed to this result, then it

doesn't matter how this result is. Three, that can be any treatment or for patterns, right? So that's

why there is an interest or might be an interest to to bring these in these creations, let's say under

patent law. Of course it depends very much on the different pattern. close, maybe you have heard

about this concept of computer-implemented invention, so that was created to some extent to deal

with this situation, because computer software generally as such is not a pattern of table subject

matter, because. Qualify and for a patent of our subject matter it is important that it should be an

invention, but we like discrediting drafting. It might be somehow transformed into this technical
invention, and then it might be subject to patent protection. So when you talk about this now is

because this is what this Article 42 is about intellectual property rights. And why is it so special?

Because this is not property rights in in the traditional sense as we saw. But if we could these

right, these are very strong. Right. And a very important feature of this writing that these are

exclusive. Yeah right. What does it mean? So for example, if the the like we mentioned the

pattern, So what does it mean if we have a pattern? With regard to a certain field of technology, so

this is. The field of technology where we have the patterns. So basically this is the invention

actually what we have. So what does it mean if we have a pattern for this field of technology?

Exactly. So we can exclude anyone else from the exploitation of this field of technology, which

basically means that if we have a patent in a product or so something in in that let's say in

Germany and then someone else. Being fought products that would be based on the same

invention, then basically the pattern holder could enforce its patent rights against the importation

of these products. So it's it's very important here in this field because if we consider these goods,

these products, many times they are somehow affected or can be. Connected with these different

forms of intellectual property rights or if you think about trademark, what does it mean trademark?

Trademarks. Yes, yes, exactly. So we have the product and there is a sign attached to that product.

This is the trademark, the sign that we attached to the product and then basically like the the

traditional. Function of a trademark is what that it has to identify the origin of the product as to we

know that what manufacturer, what producer it comes from. So we can distinguish as to the origin

of the product and so that's like the first function of trademark to prevent consumer confusion? So

lower the consumer costs in order to find the product that once you move back to purchase based

on this trademark. Which basically means that what is the trademark infringement? Anything that

can create confusion on the side of the consumer, which basically means he has that if another

company would use the same or a similar mark. With regard to the same or similar product, that's

actually a trademark infringement. So then this other company can say that we cannot import these

goods into this country. We cannot sell these goods in this country because I have a trademark for

this part for the use of this particular signing bonus. So basically the fact that you're using a

similar slide with similar products that can create consumer confusion. So basically it's a

trademark infringement and then? Another function is to protect the investment actually by the
trademark owner in order to put them into market safe into the marketing power of that mark. So

that protects actually the investment that was made into that map, which basically means that it's

not only the same or similar products , but also the same or similar mark with any kind of product

because then it can create this risk of association. This is the second type of trade mark

infringement. So it's of confusion and this will association. So then the consumers would think

that I know that. That doesn't produce, I don't know this kind of products, but since it uses the logo

Coca-Cola, I might assume that maybe something happened so it is some somehow associated

with Coca-Cola or anything like that, so which in this case it goes even beyond this. The same

products or similar products, which means that again it's very strong. From this point of view and

especially in this field, when we think about products, goods under CISG can very easily be the

case that the products are goods that are somehow linked signs and trademarks are used and then

if we consider this very broad breach of trade macro in this sense that it's not only identical

products and identical marks, but any marks that can create confusion or this risk of association so

that it's it's a very broad, let's say uncertainty as to when and how another party, third party would

come up and say that no, you cannot sell these products in this country and then we can, if we

consider this aspect of intellectual property rights, that these are very strong exclusive right. Then

you might also say that if the goods do not comply and we will talk about this Article 42. The

goods do not comply with Article 42. That might be very easily the case that it's a fundamental

breach because we cannot do anything. For example, that would be a patent infringement in that

country. So we what was this fundamental breach? The requirement that we remember is

substantial deprivation.第三方的知识产权 Next substance should deprive the party of what he's

entitled to expected under the contract. So actually enforcing intellectual property rights by third

party against us as prior, that's really like a substantial deprivation because that means that we

cannot market that good in the country. You might not even be poor even be able to import that

good into the country, into the territory. So basically it's very strong. There are limitations. I mean,

generally if you think about intellectual property life, what are these two patents to these rights

that these are territorially limited, so usually they exist with regard to a certain territory, country

like for example German patterns exist here in Germany provide for this exclusive right. German

trade match provides policies positive, active in Germany. Sometimes this territoriality is more
than just one country. You heard about the European Union trade mark? Finally again, the second

thing I could tell you, you haven't heard about that first was the person, this is the second one. So

basically this European and hopefully it's more than just losing, but this. Mac is a very special

form of intellectual property in the European Union because it's a unitary form of protection. So

there are national trademarks in the European Union Member States that, like national marks,

national forms of protection. To some extent those are harmonized because there is a trademark

directive in Europe, but nationally, but there is this unitary form of protection. This European

Union trademark, which since its unitary form, it means that it covers the entire territory of the

European Union. So here in this regard, the territoriality is not one particular country, but like the

entire European Union, it's not possible. Would have European Union trademark, for example, for

five EU Member States or for 10 new Member States. It's either all or nothing. So, so that's from

this point of view very important facts. So we cannot it's either for the entire territory of the

European Union. For with contracts we can sort of split the use of this smart, but like as to the

existence it is for the entire territory, there is actually an EU intellectual property office in

Alicante in Spain which manages this EU. They're taking my system, so basically this is also a

form of protection, and here the territory is more than one state. And. The other limitation is the

time right. Usually they last for a certain period of time. These feature property right, especially if

we think about the economic rights, those last for certain available time. Moral rights or personal

rights actually might be different that the economic rights last for a certain period of time. It is for

a limited period of time, but basically it can last forever. As long as we pay proper attention to its

maintenance, but it can last forever. So it's renewable, So it's not limited in terms of how many

times we can renew it. And that's why, if you think about it, that's an inherent interest of the

companies to bring. but. Which is this? What would you say? Better protection can be it's not not

that, but can be renewed patent protection. Not really, no. Uh. Copyright protection, it last for a

long time but basically it's not renewable design protection. You mentioned earlier design

protection which protects the the outlook of the product. Basically it depends on the laws it is

renewable but. It is limited how many times you can renew it. So what might be then the form of

protection which is like living renewable for an unlimited times? The very strong if we consider

that it's not only the identical product, identical sign, but like similar sign as well. Similar products
like this confusion, association, risk of confusion is Capacitation trademark. So what is then the

form of protection that can last basically forever? Of course it is granted for a certain period of

time. But we can renew it and renew it and renew it again in the game again. It's a trademark

protection actually. So usually it's for a certain period of time, 10 years, but we can review it. So

basically it means that if we have something that is valuable for us. Maybe because that makes our

product attractive for the consumers and we can get trademark protection for that can create for us

very exclusive right and the monopoly in the market to use that particular feature, effective feature

in the context of certain goods. So this basically means that if you think about trademark

protection, this risk of confusion and risk of association then it's a very broad right, exclusive right

in terms of what we can do. On the other hand, if we are buyers on their sales contact, there might

be a risk actually that a third party would come and say that this would has a sign which would

mean trademark infringement. So which would infringe alright. So these are very strong, right,

and very important, right? In this context, in the context of international sales, because many times

these goods that are subject to these sales transactions are affected are covered by certain forms of

intellectual property and usually it's patterns, trademarks, copyrights. But it's actually broader than

just these forms. So let's then look at these particular provisions now after this introduction. So

this Article 41 of the this is the general rule on this third party, right? And here you can see that

the seller must. Very, very good. Which are free from any right or claim of certain party unless the

buyer agreed that the goods can be like that, I mean affected by third party rights or plate. So

basically this is the general obligation and it means that any right or claim so for example any

right of claim observe party as to ownership of the goods. So then there will be no other party who

would come and say that. But these goods were not owned by the seller actually. But these goods

were owned by others. And then basically the seller wouldn't have the possibility actually to sell

these goods because the seller was not the owner and didn't have any authorization for months to

sell these goods. So basically the seller has to deliver the goods. This good is free from any party

rights or claims in order to make it possible, as we discussed earlier, that basically the buyer will

be able to enjoy an undisturbed possession of the goods undisturbed possession of ownership

industry. So that's better the buyer can acquire ownership or not that's the property little question

here as like a contractual obligation for the parties that the seller must deliver the goods free for
many kinds of things. Article 42 is about intellectual property rights as we saw. It means that the

seller must deliver goods which are free from any right or claim of a third party based on

industrial property or other intellectual property. But now if you just start with this immediately,

we can see that there is a question of qualification. What is industrial property or other intellectual

property. So basically it requires a very obvious concept as we know under the CISG. So it is not

to be interpreted based on certain national laws in this regard. What the national law would say is

intellectual property, industrial property, many times actually, what we can see is that in many

fields of intellectual property rights that to a very large extent these are. Based on these,

intellectual property law systems are based on international treaties. Do we know any of these

agreements? That's a very important treaty, the TRIPS agreement from the WTO and trade related

aspects of intellectual property rights, because if we consider that all things, all WTO members

have to be members of the TRIPS agreement. Basically that's a very bad coverage, yes, for

example the tips agreement. Any other agreement, and the TRIPS agreement itself refers to some

other conventions. Like the TRIPS agreement is from. 94.9 nineteen 9495 and and then like in the

previous century, in the 19th century there were already some treaties, conventions, creative,

adoptive. Convention for Projection of industrial property, and the Commission for the protection

of literary and artistic works, yes. So this Paris Convention on the protection of Industrial

Property, industrial property rights and the Burn Convention, very brief. It's like for this copyright

protection, even if it says differently, but it's like copyright protection. And there is also the Rome.

Which deal with this intellectual property rights and and the creation of this intellectual property

infrastructure. So many forms of intellectual property rights are present in the national laws, but it

might happen that a certain form is not the drug. So. That's why it is not based on national law.

What is intellectual property? Industrial property under Article 42, the CIG. It is like the general

understanding of what is intellectual property. What is industrial property in this context is in this

international. For example, all these conventions that you mentioned set up this general

framework or general, let's say what is intellectual property that what forms of intellectual

property might exist we haven't mentioned yet the you bold convention, So that's also something

that is a form of intellectual property. So it's it's a very broad. Concept might be see here or what

we can follow here. What makes it a bit actually, sorry. More interesting is that any right or claim.
So any right or claim it doesn't have to be like. Clear that it is a trademark infringement, for

example we have two companies, company A and Company B. Company is from Spain, Company

B's from Germany CompanyA sell shirts to Company B and there is a logo on this T-shirt with

bees. And then Spanish company sells these products to this German company and German

company starts to sell these products on the German market. And then after the German

company put these products on the German market, there is another German company who

says that Company B, the buyer you cannot sell these products here in Germany because I

have registered trademark for these. But this is the registered mark for this German

company. And actually, this German company uses this for this shirt and this German

company uses this showthe satisfaction for sporting equipment, so it's not for clothes, but

generally for sporting equipment. If you think about T-shirt, those might also be used for

sporting activities. So this German company says that you cannot sell these products here in

Germany because I have the exclusive right for using this mark.

. So would it raise any liability for the seller under Article 42? That here is another German

company who says that it's an infringement that Company B is selling this product here in

Germany. It's not a core decision. So not no German coordinator said that yes, it's a trademark

infringement. So this German company receives a letter from Southern German company that

stopped selling these products or using this mark because that's the trademark. If you don't stop

using the mark in Germany, then we will take the necessary legal steps. Is it something that would

raise an issue for the seller under Article 42? So we are the buyer, the first German company, what

would we do? received the shipment from the Spanish company. We put it on the market. Then

this other company comes and says that if you keep doing this, we will take you to court . So we

would notify the seller, that we received this e-mail or this letter from this other German company

Spanish company and then the reaction is that, oh, don't worry. It's fine. You don't have to worry

about just keep selling these products. Should it happen that this other German company here any

legal proceeding against you, then we are ready to help you with this legal proceedings. In fact, we

are also ready to cover half of the regular costs that you encounter in this proceedings. They only

cover half of the yeah, but they said that of course we will have you. It has already happened in

other countries as well. So then What could we do then? I would charge you. If the obligation to
make sure that there is no conflict in the trademarks cohesion. So you can't just say that it's fine,

you need to prove it all you need to make sure that there is no compilation. Because actually it

doesn't require Article 42. For example, here that would be vision, which would say that it's a

trademark infringement because this right or claim. So if we have this third party claim, who

claims that? Means that the use of this mark might leads to trademark infringement, which might

lead to the fact actually later as consequence that we will not be able to sell this product in

Germany. That can be actually sufficient to say that the seller did not comply with this

requirement that any right or claim of third party. Because that toward the real essence of

particular 42 hat it defines or determines that what country we have to take into account when we

assess whether the seller deliver the goods free from any third party that property rights or claims

so because if these intellectual property rights, territorial rights, of course it matters. That under

what law can be assessed whether it's free from any third party intellectual property right or claim.

So here you can see that. This is like what you can see now Article 42, subsection one that what

country will be relevant. What is the revelant country? The first is that basically the country where

the goods will be resold or otherwise used. It is important that the seller should be aware of this at

the time of the conclusion of the contract that the goods would be or will be resolved or delivered

to that or used in that particular country. If not, then it's the country where the buyer has its place

of business. In this situation. Should then the Spanish seller with any research on the German? If

you got to Germany better this is actually something that would create a trademark infringement

in this country in Germany or that would have been to some extent obligation of the German

buyer to to make some kind of prior clearance. So I purchased this product then whether that will

make any infringement. So it's very easy to say that the seller has to deliver these goods free from

an intellectual property rights under this row. But what extent is this network to expect the seller

that it will actually very well? So it would require some kind of further assessment to know that

there exists this other company, but what are the chances that it would be actually a third party

claim later concerning them, the marketing of these product so.

Let's not forget the general considerations that we discussed in this regard, the importance of party

autonomy, that we talked about default rules, but basically the parties can always be otherwise

they can modify these provisions and the obligations of the seller basically that we have gone

through. The main streaming obligations of the seller and then basically this is how we will

continue tomorrow that we will talk about the obligations of the buyer that will be actually very

less from this point of view then the status obligation and also the remedies that can be involved.

And that's for the first part of tomorrow's class and then in the second part, we will look at some

case studies as well.