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July 14, 2013

Custom Essay Paper Sample on Intellectual Property Law

Intellectual Property Law
Intellectual property (IP) refers to a number of various types of creations of the mind for which property rights are granted under the ambit of law. Intellectual property laws grant certain exclusive rights for intangible assets such as literary, artistic works, words, phrases, designs, discoveries, inventions, and designs. The most common kind of intellectual property laws comprise copyrights, trademarks, trade secrets, industrial design rights, and patents.
 The legal governing principles of intellectual property laws did not take centuries to evolve. It became a commonplace in the United States in late 20th century though the Britsh Statue of Anne built in 1710 and the Statue of Monopiles in 1623 are now said to have been the origin of intellectual property rights. "The history of patents does not begin with inventions, but rather with royal grants by Queen Elizabeth I (1558-1603) for monopoly privileges... Approximately 200 years after the end of Elizabeth's reign, however, a patent represents a legal [right] obtained by an inventor providing for exclusive control over the production and sale of his mechanical or scientific invention... [demonstrating] the evolution of patents from royal prerogative to common-law doctrine."[1]
A trademark may be defined as a unique sign or indicator that individuals, business companies, use to keep their respective trademarks intact. They also use their trademarks to appear unique and distinguish their products or services from others. Trademarks enable these companies to promote and enhance their brand services. A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.[2] There are also a range of non-conventional trademarks having marks that do not necessarily come under standard categories, such as those based on color, smell, or sound.
The term trademark is also employed offhandedly to refer to any distinctive quality by which an individual is easily identified, such as the famous characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States.[3]
The Trade Marks Act 1994 is the principle law which governs trademarks within the United Kingdom and the Isle of Man. It implements a previous EU Directive which constitutes the framework for the trade mark laws of all EU member states. It replaced the earlier law of The Trade Marks Act 1938.  The Act provides both civil and criminal law sanctions for the misuse of registered trademarks. Section 93 of the Act makes enforcement of the criminal sanctions the duty of the local Weights and Measures Authority (usually the Trading Standards department) and imports enforcement powers from the Trade Descriptions Act.
The Trade Marks Act 1994 states that "a person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered" (section 10(1) of the Act). A person may also infringe a registered trade mark where the sign is similar and the goods or services are similar to those for which the mark is registered and there is a likelihood of confusion on the part of the public as a result (section 10(2)).
A person also infringes a registered trade mark where a sign is identical but the goods are dissimilar if the trade mark has a reputation in the UK and its use takes unfair advantage of, or is detrimental to, the mark’s distinctive character or reputation (section 10(3)).
Kelvin Clarke is the registered proprietor of trademark named Sensational for clothing and Yves, another entity uses Scentational---quite similar trademark to sell perfume. Though the goods and services are different from each other yet it causes confusion among the customers. Since, Sensational is a renowned brand of clothing; Yves has tried to imitate the same to increase its sale of perfumes. Though, it is not a direct violation of trademark laws as but Yves somehow resorts to taking undue advantage of  Kelvin’s popular brand by coming up with a very similar trademark.
 Kelvin Clarke may consult court to defend his mark as the extent to which its trademark is defendable depends on the similarity of the marks involved. Sensational and Scentational are quite similar to each other and may dupe the customers into believing that Kelvin has also started selling perfumes. Nevertheless, it is possible only when Kelvin has got the distinctiveness of his brand as a registered one. The reason is that a registered trademark is always easier to defend in the court of law as compared to unregistered one. Unregistered brands do not enjoy the same rights.   
Every year, hundreds of registered trademarks are infringed upon or unlawfully used without authorization from the trademarked company. Although the unauthorized use of such trademarks is often for harmless pleasure without any purposeful mischief, there can frequently be involuntary consequences ensuing from the use of a trademark without permission. A trademark should never be reproduced, displayed, or copied without the explicit permission of the registering company.
If Vivienna is advertising her Spring 2010 collection of ladies’ clothing on television using the slogan “In Vivienne’s frocks you’ll look sensational”; then this is by no means the violation of trademark act 1994 because the word sensational has not been used to create confusion or take undue advantage of the popularity of Kelvin’s brand in this case. It should be kept in mind that any word registered as a brand does not necessarily restricts others to use the same word in a different way. The way word sensational Vienne has used to advertise her frocks does not threaten the popularity or reputation of the Kelvin’s clothing brand.
Jessica, a footwear manufacturer, is advertising that her shoes will complement any SENSATIONAL garment. This may be described as the direct violation of trademark laws if Jessica has sought no prior authorisation from Kelvin. In this regard unlike the previous case, the word Sensational has a direct implication and ma the Sunday Dirt, a tabloid newspaper, has begun the serialisation of an unauthorised biography of Kelvin.
 There have been many reported cases in the public media in which someone illegitimately used a registered trademark, and had to bear the consequences after being confronted by the registered company. The latest of these trademark debacles occurred several weeks ago when Chattanooga Tennessee Mayor Ron Littlefield used the Volkswagen VW logo without the company's permission. The resulting conflict has led to a great deal of embarrassment to the mayor, even causing him to issue a public apology regarding the matter.[4]
Similarly, if Sunday Dirt, a tabloid newspaper has started the serialisation of unauthorized biography of Kelvin, accusing it of stealing fashion designs then Kelvin reserves the right to challenge the accusations leveled against it in the court. Kelvin may sue the newspaper for damaging its reputation and ask for compensation. It should glaringly be a cause for concern from Kelvin’s viewpoint. Whatever be the intent of newspaper, such propaganda may lead people to believe that Kelvin has really stolen the ideas that are touted as original and unique.
 As far as the ownership of an idea is concerned, both individuals and corporate entities may apply for a patent. In the United States, however, only the inventor(s) is eligible to apply for a patent although it may be assigned to a corporate entity subsequently.[5] Inventors may be required to assign inventions to their employers under a contract of employment. In most European countries, ownership of an invention may pass from the inventor to their employer by rule of law if the invention was made in the course of the inventor's normal or specifically assigned employment duties, where an invention might reasonably be expected to result from carrying out those duties, or if the inventor had a special obligation to further the interests of the employer's company.[6]
The inventors, their successors or their assignees become the proprietors of the patent when and if it is granted. If a patent is granted to more than one proprietor, the laws of the country in question and any agreement between the proprietors may affect the extent to which each proprietor can exploit the patent. For example, in some countries, each proprietor may freely license or assign their rights in the patent to another person while the law in other countries prohibits such actions without the permission of the other proprietor(s).
The ability to assign ownership rights increases the liquidity of a patent as property. Inventors can obtain patents and then sell them to third parties. The third parties then own the patents and have the same rights to prevent others from exploiting the claimed inventions, as if they had originally made the inventions themselves.[7]
 Similarly, the undergraduate student, her professor and the PhD student may have to renounce the right to apply for the proprietorship rights. Though it was originally the idea of hers but by the rule of law she may be required to assign her invention to the university just as an employee does under the employment contract. Plus, the professor and PhD student were both involved in minor developments that made the machine work faster. Her invention “Wonder Slicer” may be owned by the University Uxbridge in which it was invented.
 Under the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights, patents should be available in WTO member states for any inventions, in all fields of technology,[8] and the term of protection available should be the minimum twenty years.[9] Different types of patents may have varying patent terms (i.e., durations).
 As far as the protection of invention goes, an invention must, in general, fulfill the following conditions to be protected by a patent. It must be of practical use; it must show an element of novelty, that is, some new characteristic which is not known in the body of existing knowledge in its technical field. This body of existing knowledge is called " prior art". The invention must show an inventive step which could not be deduced by a person with average knowledge of the technical field. Finally, its subject matter must be accepted as "patentable" under law. In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, or methods for medical treatment (as opposed to medical products) are generally not patent-able.[10]
Creators can be given the right to prevent others from using their inventions, designs or other creations — and to use that right to negotiate payment in return for others using them. These are “intellectual property rights”. They take a number of forms. For example books, paintings and films come under copyright; inventions can be patented; brandnames and product logos can be registered as trademarks; and so on. Governments and parliaments have given creators these rights as an incentive to produce ideas that will benefit society as a whole.[11]
There are several important points regarding the potential loss of intellectual property rights by the actions of an inventor or creator, and other matters that warrant special and advanced mention. Adherence to these points will help individuals or companies avoid the unintended loss of rights to their novel technology.[12]
In the following lines I will suggest ways through which Uxbridge University can ensure the protection of their invention.
  Respected Chancellor,
  University of Uxbridge
                                     This is with reference to your new invention named “Wonder Slicer.” First of all, I would like to congratulate your undergraduate student and all team on working out such a novel idea. There are several ways through which you can ensure the protection of your invention. The invention though patentable should initially not be publicly disclosed to anyone outside your university to any irrelevant quarter or individual until an application regarding your invention with US patent and trademark office or your home patent office. This will keep the information of your invention intact and minimize the chances of any property rights violation outside United States. Try to keep the disclosure non-public as it will save your patent rights.
Having obtained a patent on your invention, it is advisable that you should conduct an infringement search to make sure that your invention does not infringe upon any other product before finally introducing it to the market. You should submit all necessary material to the US patent office and understand the terms and conditions of the pedant. Make sure that somebody else is not using the same name or a symbol in any business. Ask your vendor to sign an agreement which will ensure that no matter what they contribute to the development of your invention, the invention shall belong to you, not the vendor.
It is also necessary that you keep all records regarding your invention intact. When it comes to copyright, make sure that you follow copyright laws preventing the use of the same idea or expression used by someone else. Rest assured, just as technologies change, the laws for intellectual property also may change to protect new forms of innovation.

The unique nature of information is that it is an unlimited resource. If I have an idea, and I give it to you, I still have that idea. I can give that idea to everyone in the entire world, without losing anything. Scarcity does not exist, thus our current economic models don't make much sense. This is already causing a great deal of turmoil as people try to exchange information for scarce resources in the physical world. We need to find a way to facilitate trade between these two worlds, or those who produce ideas in our society will be unable to function; our solution has been to create the laws of intellectual property. Intellectual property is an attempt to create scarcity where scarcity does not naturally exist.[13]Intellectual Property laws were applied in an attempt to give the creator of a thought or process control over the distribution of that thought or process. This system works well when applied to a tangible asset or commodity. However, now that we continue to move in the direction of a society with no borders, largely based on the sharing of information, it becomes more difficult to regulate those laws. This becomes even more apparent when dealing with countries, such as (China) that do not agree with our principals of intellectual property or feel obligated to enforce or abide by such laws.[14] Countries where a large segment of their economy is built on revenues derived from various types of copyright violations. Numerous groups in China have been pirating U.S. computer software, movies, music, and other information products. When looked at from the perspective of these U.S. corporations, this is theft. The Chinese are using information they never paid for. However, from the China's perspective, the U.S. corporations are the thieves. The Chinese realize that information is not a scarce resource. When someone in China illegally copies an American computer program, movie or CD the U.S. is not directly harmed; no resources are diminished, and therefore no payment should be demanded or expected.[15] U.S. demands of payment for these copies seem like an arbitrary bully demanding taxes on air. It doesn't make sense from China's perspective, and they seem quite willing to stand up and fight the U.S. on this issue. Some new forms of control will be needed to prevent unrestricted copying and plundering of intellectual property; but technological innovation will undermine any attempts to apply too much control. Some flexibility in control is needed to prevent the suppression of communication and commerce, but where do we draw the line? Do we accept China’s argument that that information is not a scarce resource?In the most notorious legal cases our era's in which control over intellectual property has been considered too extreme: an antitrust case brought against Microsoft. These cases essentially assert that Microsoft's control over its intellectual property is restricting innovation and that, because the company wields such monopolistic power, it must sacrifice some control so that the remainder of the industry can continue to grow. The U.S. District Court's 1999 Findings of Fact that became the foundation for all later American antitrust court decisions regarding the company.[16] The recently adopted federal anti-dilution statute, which shields "famous" trademarks from activities that "tarnish," "disparage," or "blur" them, grew out of a similar intersection of forces. Manufacturers of products sold under famous labels complained to Congress that the protection they enjoyed from state anti-dilution statutes was uneven; too often, they insisted, manufacturers of unrelated products were able to "free ride" on the reputations of famous brands by using confusingly similar marks. It should be unlawful, they insisted, to manufacture "DUPONT shoes, BUICK aspirin, [or] KODAK pianos." Why? If consumers are not misled concerning the source of the products, why exactly is it important to prohibit such activities? The manufacturers offered two reasons: (1) they had invested time and effort in cultivating these famous marks and thus deserved legal protection; and (2) other countries already had such prohibitions and it was important that the United States not lag behind any nation in the strength of its intellectual-property protections. In the absence of any organized resistance from consumers, these arguments prevailed. In short, the combination of a strong interest group, largely unopposed in the lobbying process, able to draw effectively upon the labor-desert theory and the presumptive legitimacy of its members' "property" rights, secured yet another extension of the law.[17]

It is possible at least to slow the growth of intellectual property rights. The White Paper Released in 1995 by President Clinton's Information Infrastructure Task Force recommended a variety of adjustments of copyright law, all designed to increase the ability of copyright owners to control uses of their works on the internet.[18] Those recommendations were quickly embodied in proposed legislation, which, in the absence of organized opposition, initially seemed assured of passage. To the surprise of many observers, the legislative initiative failed. Crucial to that failure was a publicity and lobbying campaign waged by a miscellaneous group of scholars, educators, and public-interest activists. In the face of this outpouring of criticism (during an election year), the Congressional committees decided not to proceed.[19] The victory may have been short-lived; Bruce Lehman, the principal architect and proponent of the White Paper, will likely succeed in securing most (albeit not all) of his reforms through amendments to the Berne Convention. But the tide was turned at least briefly.

Important lessons can be gleaned from this episode. But the opponents of the growth of intellectual property should not be overly optimistic. A mutually reinforcing combination of economic, ideological, political, and discursive conditions makes further expansion of these entitlements likely. The concept of intellectual property and the laws which attempt to regulate that concept must be vaguely conceived and applied. Because of the rapid growth of technological innovations, and the rapid spread of that information to spur more growth, the law cannot keep up.[20] Most decisions, like the one in the Microsoft case, are outdated almost as soon as they are written into law. The pace of change, the sharing of information, and the use/misuse of intellectual property can only be guided, it cannot be regulated. Any attempts to do so will be futile.
Alexander Joseph, The Hidden Costs of Unauthorized Trademark Use, retrieved from

Article 28.2 TRIPs

Article 27.1. of the TRIPs Agreement.

Article 33 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Bouchoux, Deborah, The Property for Paralegals: The Law of Trademarks, Copyrights, Patents, and Trade Secrets, Cengage, p.516. 2008 
Burk, Dan L. and Mark A. Lemley. The Patent Crisis and How the Courts Can Solve It. University of Chicago Press, 2009

Charles Anthon, A Classical Dictionary: Containing An Account Of The Principal Proper Names Mentioned in Ancient Authors, And Intended To Elucidate All The Important Points Connected With The Geography, History, Biography, Mythology, And Fine Arts Of The Greeks And Romans Together With An Account Of Coins, Weights, And Measures, With Tabular Values Of The Same, Harper & Bros, 1841, p. 1273.

Dratler Jay, Intellectual Property Law, Penguin, p.511.2004
Ganea, Peter, Pattloch Thomas, Heath, Christopher, Intellectual Property Law in China, Kluwer Law Internationl, p.388, 2001
Goldestine, David, Shaw, Melden, Intellectual property protection, Professional publications, p.68.1992

Howard B. Rockman, Intellectual property law for engineers and scientists, Wiley-IEEE, p.511 2004

Intellectual property: protection and enforcement retrieved from on December 7

Landes, Williams, Posner, A, Richard, The Economic structure of Intellectual Property Law, Harvard University Press, p.466, 2004

Levine, David; Michele Boldrin. Against intellectual monopoly. Cambridge University Press,2008

Macmillan,Fiona, New Directions in Copyright Law Edward Elgar Publishing, p.249. 2007

Mossoff, A. 'Rethinking the Development of Patents: An Intellectual History, 1550-1800,' Hastings Law Journal, Vol. 52, p. 1255, 2001

Section 39 of the UK Patents Act

Shippy, C, Karla, A short course in international intellectual property rights: protecting your brands, marks, copyrights, patents, designs, and related rights worldwide, World Trade Press, p.184, 2002
Siva Vaidhyanathan, Copyrights and Copywrongs: the rise of intellectual property and how it threatens creativity, NYU Press, p.256. 2003


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