Legal formalism, delusion and reality: time for debate

One of the most powerful pieces so far published in JIPLP is "Ensuring greater legal certainty in OHIM decision-taking by abandoning legal formalism" by Rhys Morgan, a critical view of the manner in which the law relating to Community trade marks has been allowed to dominate the apparent reality of the real world in which we live. This article has already been placed on open access, so that subscribers and non-subscribers alike can read it and ponder its most telling points.

Rhys is a barrister who works at the Office, and who therefore has had the opportunity to study OHIM legal decision-making at close quarters. He is not however the only person who holds views of this nature.  David Keeling, currently a Board of Appeal member at the European Patent Office but previously with the OHIM Boards of Appeal, agrees with him and calls for a debate on the "deluded belief" of many lawyers that the application of the right rule to the right facts delivers the right result.  He explains:
"Rhys Morgan’s article on legal formalism is possibly the best article on the subject of trade mark law since Frank Schechter’s seminal piece published in the Harvard Law Journal in 1927. It should be compulsory reading for the President and senior managers of OHIM, their equivalents in the Member States, the judges at the European Court of Justice and General Court, judges in national courts in the EU, and anyone else with an interest in trade mark law ... 
. ... I find it astonishing that people can spend years at university studying law and come away with the deluded belief that law can be reduced to a set of simple rules and formulas and that for each legal problem there is a single correct solution that can be reached by carefully applying those rules and formulas. Surely Oliver Wendell Holmes demonstrated the folly of such an idea when he wrote “The life of the law has not been logic; it has been experience”".
David's fully articulated thoughts on the subject can be read here.

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