Review of penalties and additional damages : Trade Marks Act 1995

Effective enforcement of intellectual property (IP) rights has become a significant issue due to concerns about the effects of IP infringement, including trade mark counterfeiting. It is an important issue for the Australian Government as IP rights underpin a strong, modern economy. Criminal offences and civil remedies can be an important element of an enforcement regime. This review of penalties and additional damages in the Trade Marks Act 1995 (Cth) (Trade Marks Act) has been prompted by a recommendation made by the Advisory Council on Intellectual Property (ACIP), recent changes to the Copyright Act 1968 (Cth) (Copyright Act) and concerns raised by stakeholders. The purpose of this paper is to elicit comments on options which IP Australia is considering recommending to Government.

Assessing specific deterrence effects of increased speeding penalties using four measures of recidivism

Traffic law enforcement sanctions can impact on road user behaviour through general and specific deterrence mechanisms. The manner in which specific deterrence can influence recidivist behaviour can be conceptualised in different ways. While any reduction in speeding will have road safety benefits, the ways in which a ‘reduction’ is determined deserves greater methodological attention and has implications for countermeasure evaluation more generally. The primary aim of this research was to assess the specific deterrent impact of penalty increases for speeding offences in Queensland, Australia, in 2003 on two cohorts of drivers detected for speeding prior to and after the penalty changes were investigated. Since the literature is relatively silent on how to assess recidivism in the speeding context, the secondary research aim was to contribute to the literature regarding ways to conceptualise and measure specific deterrence in the speeding context. We propose a novel way of operationalising four measures which reflect different ways in which a specific deterrence effect could be conceptualised: (1) the proportion of offenders who re-offended in the follow up period; (2) the overall frequency of re-offending in the follow up period; (3) the length of delay to re-offence among those who re-offended; and (4) the average number of re-offences during the follow up period among those who re-offended. Consistent with expectations, results suggested an absolute deterrent effect of penalty changes, as evidenced by significant reductions in the proportion of drivers who re-offended and the overall frequency of re-offending, although effect sizes were small. Contrary to expectations, however, there was no evidence of a marginal specific deterrent effect among those who re-offended, with a significant reduction in the length of time to re-offence and no significant change in the average number of offences committed. Additional exploratory analyses investigating potential influences of the severity of the index offence, offence history, and method of detection revealed mixed results. Access to additional data from various sources suggested that the main findings were not influenced by changes in speed enforcement activity, public awareness of penalty changes, or driving exposure during the study period. Study limitations and recommendations for future research are discussed with a view to promoting more extensive evaluations of penalty changes and better understanding of how such changes may impact on motorists’ perceptions of enforcement and sanctions, as well as on recidivist behaviour.

Earliness penalties on a single machine subject to precedence constraints: SLK due date assignment

The paper considers the single machine due date assignment and scheduling problems with n jobs in which the due dates are to be obtained from the processing times by adding a positive slack q. A schedule is feasible if there are no tardy jobs and the job sequence respects given precedence constraints. The value of q is chosen so as to minimize a function ϕ(F,q) which is non-decreasing in each of its arguments, where F is a certain non-decreasing earliness penalty function. Once q is chosen or fixed, the corresponding scheduling problem is to find a feasible schedule with the minimum value of function F. In the case of arbitrary precedence constraints the problems under consideration are shown to be NP-hard in the strong sense even for F being total earliness. If the precedence constraints are defined by a series-parallel graph, both scheduling and due date assignment problems are proved solvable in time, provided that F is either the sum of linear functions or the sum of exponential functions. The running time of the algorithms can be reduced to if the jobs are independent. Scope and purpose We consider the single machine due date assignment and scheduling problems and design fast algorithms for their solution under a wide range of assumptions. The problems under consideration arise in production planning when the management is faced with a problem of setting the realistic due dates for a number of orders. The due dates of the orders are determined by increasing the time needed for their fulfillment by a common positive slack. If the slack is set to be large enough, the due dates can be easily maintained, thereby producing a good image of the firm. This, however, may result in the substantial holding cost of the finished products before they are brought to the customer. The objective is to explore the trade-off between the size of the slack and the arising holding costs for the early orders.

The impact on students of coursework assessment deadlines and penalties

The use by students of an e-learning system that enhances traditional learning in a large university computing school where there are clear assessment deadlines and severe penalties for late submission of coursework is examined to assess the impact of changes to the deadline model on the way students use the system and on the results they achieve. It is demonstrated that the grade a student achieves is partly dependent on the time before the deadline when the work is completed - in general, students who submit earlier gain higher grades. Possible reasons for this are explored. Analysis of the data from a range of different implementations of deadline policies is presented. Suggestions are made on how to minimise any possible negative impact of the assessment policy on the student's overall learning.

Penalties on car rental agreements

Examines the Cambridge County Court ruling in Volkswagen Financial Services (UK) Ltd v Ramage on whether a clause in a car hire contract which allowed the finance company, upon repudiation of the contract after the hirer fell into arrears, to claim compensation equivalent to the lost future rental payments was unenforceable as a penalty clause, rather than being a reasonable pre-estimate of actual loss. Refers to case law including the Court of Appeal ruling in Anglo Auto Finance Co v James in considering the differing losses which would occur during the course of the hire term according to the natural depreciation of the value of the car. Notes the reasoning of the Court on: (1) contracts of hire compared with hire purchase agreements; (2) the comparative position of the parties and the freedom to contract elsewhere; and (3) the reasonable prediction of future losses.

Enforcing Member State Compliance with EU Environmental Law: A Critical Evaulation of the Use of Financial Penalties

The 1993 Treaty on European Union finally closed a legal vacuum in
EU law, by giving the Court the power to impose financial penalties to
enforce compliance with its judgments. Today, this power is found
within Article 260(2) of the Treaty on the Functioning of the
European Union. Drawing upon case law, this article examines the
role that the Court’s enforcement powers have played in relation to
EU environmental law. It argues that EU law has yet to make full use
of their potential. The article commences with the Commission and
questions whether it has sufficient resources to carry out its functions
under Article 260(2). The article also examines the ongoing problem of
Member State delay in complying with Court judgments and the
weight given to environmental considerations in the Court’s decision
making on financial penalties. The article concludes by examining the
implications of the Lisbon Treaty.

Accuracy of outcome anticipation, but not gaze behavior, differs against left- and right-handed penalties in team-handball goalkeeping

Low perceptual familiarity with relatively rarer left-handed as opposed to more common right-handed individuals may result in athletes' poorer ability to anticipate the former's action intentions. Part of such left-right asymmetry in visual anticipation could be due to an inefficient gaze strategy during confrontation with left-handed individuals. To exemplify, observers may not mirror their gaze when viewing left- vs. right-handed actions but preferentially fixate on an opponent's right body side, irrespective of an opponent's handedness, owing to the predominant exposure to right-handed actions. So far empirical verification of such assumption, however, is lacking. Here we report on an experiment where team-handball goalkeepers' and non-goalkeepers' gaze behavior was recorded while they predicted throw direction of left- and right-handed 7-m penalties shown as videos on a computer monitor. As expected, goalkeepers were considerably more accurate than non-goalkeepers and prediction was better against right- than left-handed penalties. However, there was no indication of differences in gaze measures (i.e., number of fixations, overall and final fixation duration, time-course of horizontal or vertical fixation deviation) as a function of skill group or the penalty-takers' handedness. Findings suggest that inferior anticipation of left-handed compared to right-handed individuals' action intentions may not be associated with misalignment in gaze behavior. Rather, albeit looking similarly, accuracy differences could be due to observers' differential ability of picking up and interpreting the visual information provided by left- vs. right-handed movements.

Making the least active pay: a simulation of rewards and penalties under Demand Side Participation programs

The orthodox approach for incentivising Demand Side Participation (DSP) programs is that utility losses from capital, installation and planning costs should be recovered under financial incentive mechanisms which aim to ensure that utilities have the right incentives to implement DSP activities. The recent national smart metering roll-out in the UK implies that this approach needs to be reassessed since utilities will recover the capital costs associated with DSP technology through bills. This paper introduces a reward and penalty mechanism focusing on residential users. DSP planning costs are recovered through payments from those consumers who do not react to peak signals. Those consumers who do react are rewarded by paying lower bills. Because real-time incentives to residential consumers tend to fail due to the negligible amounts associated with net gains (and losses) or individual users, in the proposed mechanism the regulator determines benchmarks which are matched against responses to signals and caps the level of rewards/penalties to avoid market distortions. The paper presents an overview of existing financial incentive mechanisms for DSP; introduces the reward/penalty mechanism aimed at fostering DSP under the hypothesis of smart metering roll-out; considers the costs faced by utilities for DSP programs; assesses linear rate effects and value changes; introduces compensatory weights for those consumers who have physical or financial impediments; and shows findings based on simulation runs on three discrete levels of elasticity.

Exact penalties for variational inequalities with applications to nonlinear complementarity problems

In this paper, we present a new reformulation of the KKT system associated to a variational inequality as a semismooth equation. The reformulation is derived from the concept of differentiable exact penalties for nonlinear programming. The best theoretical results are presented for nonlinear complementarity problems, where simple, verifiable, conditions ensure that the penalty is exact. We close the paper with some preliminary computational tests on the use of a semismooth Newton method to solve the equation derived from the new reformulation. We also compare its performance with the Newton method applied to classical reformulations based on the Fischer-Burmeister function and on the minimum. The new reformulation combines the best features of the classical ones, being as easy to solve as the reformulation that uses the Fischer-Burmeister function while requiring as few Newton steps as the one that is based on the minimum.

What sort of mandatory penalties should we have?

The argument in favour of a widespread fixed penalty regime - adopting a primary rationale for punishment would facilitate a more coherent and exacting approach to sentencing - the central objections against fixed penalties are that they are too severe and lead to unfairness because they are unable to incorporate all the relevant sentencing variables - by adopting a utilitarian ethic as the primary rationale for punishment, these problems can be circumvented - no utilitarian justification for disproportionate punishment, and penalties should not exceed the seriousness of the offence - no foundation for most sentencing considerations - by disregarding irrelevant considerations, the remaining can be incorporated into a fixed penalty system - the way would then be open for a coherent sentencing law system in which criminal justice is governed by pre-determined rules and principles as opposed to the intuition of sentencers.