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Usefulness of Expert Witnesses in Trade Mark Disputes

By Andis Kaulins

All things in law and life are decided upon facts or evidence, at least what we view to be facts or evidence, or the absence of same.

Throughout our professional life, we have been very skeptical of "experts", especially if this involves any of the humanities. In the physical sciences, an engineer's motor is subject to testing. Either it runs or not. This is often not true for expert testimony in other less exact fields, however, where witnesses seek to exert their alleged "authority", without any better proof for their opinions than those held by normal citizens.

In this regard, it is thus interesting to read Lady Justice Arden's UK ruling in Judge says expert witnesses are rarely useful for trade mark disputes. As the ruling clearly demonstrates, it is all really rather a matter of opinion...but there are SOME facts.

Hat tip to Out-Law.com.

OK, this posting ends our experiment with Zemanta. Some interesting ideas, but not yet that useful to us in terms of links or the photo gallery provided.

UPDATE ON EXPERT WITNESSES

Martha Neil at the ABA Journal News may have the "down under" solution in her posting today, When Expert Witnesses Disagree, ?Hot-Tubbing? is a Possible Solution, where she writes:

"When expert witnesses have opposing views of the same evidence, even the judge can be daunted.... Australia, however, has successfully pursued a different path toward resolution: "hot-tubbing." Putting the experts together and allowing them to question each other, rather than making their reports in isolation, can eliminate many disagreements. The Australian approach also accords with the established American system of allowing each side to present its own case."

Sounds good.

A SECOND UPDATE ON EXPERT WITNESSES

It is sometimes remarkable how some topics seem to surface concurrently on media. Adam Liptak at the The New York Times also has an article on expert witnesses, as his article In U.S., Partisan Expert Witnesses Frustrate Many targets the major weakness of the US expert witness system, which is that expert witnesses tend to take the side of the party who is paying them, leading to biased testimony on both sides of a legal case.

Again, we think that "hot tubbing" would also be a recommended solution for the problem we see in peer-reviewed academic journals especially in the humanities - but also in the physical sciences, which is that there is primarily a one-sided presentation of issues, rather than a balanced handling of important scientific questions.

Full post as published by LawPundit on August 11, 2008 (boomark / email).