Flashcards
Intellectual Property
Cards in this deck (47)
- 1passing offcommon law action which protects un/registered TMs and other representations
no trader may pass of its goods as those of another trader's
generic representations can't be protected
person deceived has right to action - 2passing off protects...goodwill as property - client is protected by law of PO so long as there is goodwill
only protected so far as it extends (e.g. Aberdeen) - 3passing off goodwillIRC v Muller 1901
it is the attractive force which brings in custom, the one thing which distinguishes an old-established business from a new business at its start, it has the power of attraction sufficient to bring customers to the source from which it emanates - 4passing off propertyAG Spalding v AW Gamage Ltd 1915
case settles where property lies
in the goodwill
enabled TMs to be licensed
parties have to be engaged in a common field of trade - 5passing off Reckitt & Colman Products Ltd v Borden Inc 1990 test1. plaintiff must establish GW/reputation - goods offered must be distinctive
2. plaintiff must demonstrate a misrep. by the defendant to the public (un/intentional)
3. plaintiff must demonstrate that he suffers damage by reason of erroneous belief engendered by defendant's misrep - the source of D's goods is the same source as those offered by plaintiff - 6passing off false endorsement and merchandising claimsIrvine v Talksport 2002 - parties don't have to engage in same trade
followed in Fenty v Arcadia 2015 - R has good reputation and GW in music and fashion business - she suffered financial consequences - should have control over her own GW/reputation - 7TMTrade Marks Act 1994
registrant has certain exclusive rights to use a particular sign - registering provides a scope of certain protection
a registered TM is an incorporeal moveable property (s22)
TMs can be protected before being put on the market - 8TM registrationconfers UK-wide rights - enables an action for infringement without need to prove damage or confusion in minds of the public
once registered, protection lasts 10 years (s42(1)) and renewable indefinitely for periods of 10 years thereafter (s43) - 9TMs art 15protectable subject matter:
any sign or combination of signs, capable of distinguishing the goods... members may make registrability depend on distinctiveness acquired through use - 10TMs art 3signs of which a TM may consist:
any signs including personal names or designs, letters, numerals, colours, shape, packaging of goods, or sounds
provided they are capable of distinguishing the goods of one undertaking from others and being represented on the register in a manner which enables authorities and the public to determine the clear and precise subject matter of the protection afforded to proprietor - 11TMs TMA 1994 s1TM means any sign capable of being represented graphically which is capable of distinguishing goods of one undertaking from those of other undertakings
may consist of words (personal names), designs, letters, numerals, shape or packaging
Siekmann v DeutchesPatent und Markenamy 2003 - scent - 12TMs absolute grounds of refusal o registerdevoid of distinctive character, descriptive, shape which results from goods, specially protected emblem, bad faith (s3)
- 13TMs relative grounds of refusal to registertoo close to other registered marks
one can overcome this by consent
or non-use of the earlier mark (s5) - 14TMs infringing acts s9proprietor has exclusive rights in the TM which are infringed by use of the TM in the UK without consent
acts are specified in s10 - they require no knowledge or intent by the D and plaintiff is not required to demonstrate damage - 15TMs defencesnon-TM use: Arsenal v Reed 2003 - not using to distinguish goods, had disclaimers saying not official, only selling as band of allegiance
- 16TMs lasts for...10 years and are renewable
ss 42 and 43 - 17TMs removal from registers46 covers grounds for (partial) revocation - where mark has remained unused for 5 years without proper reason, where mark has become a common name in the trade, where mark is liable to mislead public as consequence of use made of it by registrant or with his consent
- 18TMs partial invaliditygrounds on s47
- 19patentsPatents Act 2004
- 20patents rationalereward inventors - could be said not necessary
incentivise strategy
public disclosure is important as allows others to look and improve
if someone has patent they are more attractive to investors - 21patents registrationform in s14 (abstract, specification - description, claims, drawings)
application (s14-18): must contain request for grant - specification - then submitted to IPO - checks to see if sufficient technological step to warrant patent - public disclosure element - 22patent granted for...2 years
gives proprietal rights so can use, sell etc. - 23patent requirementsinvention is not defined
innovation must be new (s1)
novelty requirements to be met (s2)
(doesn’t form state of the art
- Involves an innovative step (elaborated in s3 – not obvious to a person skilled in the art) – Windsurfing v Tabur Marine 1985 – 4 part test – identify innovative concept embodied in patent suit, assume mantel of normally skilled but unimaginative person, identify what, if any, differences exist between state of art and invention and ask whether without knowledge of invention the differences constitute steps which would have been obvious to a skilled man, or if they require a degree of invention – test upheld in Pizzoli v BDMO 2007
- Is it capable of industrial application (s4 – capable if can be made or used in any kind of industry) - 24patent must not be excluded in ss2 and 3 of s1ss3 excludes if contrary to public policy or morality (Greenpeace v Brustle 2013)
could argue invention is in public interest - 25patent duration20 years max
first to file is first in right - 26patent ownerinventor is owner, unless inventor is an employee and it is their job - then employer is the owner (s39-43)
- 27patent not inventionsa discovery, scientific theory or mathematical method, an aesthetic creation, a mental act, the presentation of information
Aerotel v Telco Holdings 2006
not patentable inventions - human body, cloning humans, embryos, genetic ID of animals (sch A2 para 3) - 28patent infringing actsmaking, disposing of, using (s60)
Pioneer v Warner 1997 - 29patent defencesvalidity - allows others to challenge validity of patent
experimental use - Monsanto v Stauffer 1985
s70 gives threatened people the right to claim damages - 30copyright rationalenatural right (emanates from mind of author), reward, incentive
- 31copyrightCopyright, Designs and Patents Act 1988
- 32copyright registrationno need to register
rights subsisting in copyright works arise automatically upon creation of protected work
Protected Works s1 CDPA
Ownership s9 CDPA - 33copyright kinds of rightseconomic and moral
moral rights subsist in favour of the author and aim to protect GW and reputation of artist
(s77,84,80,85) - 34copyright moral rightss77: to be identified as author (right must be asserted)
s84: against false attribution of work (20 years from end of year in which author dies)
s80: to object to dergoatory treatment of work (Snow v The Eaton Centre 1982)
s85: to privacy of certain photos and films (not issued, exhibited or shown or communicated)
all waivable - 35copyright Artist's Resale Right Regulation 2006not waivable
artist can recoup proportion of each resale
as reputation grows, value of early works grow
controversial - should it be attributed to artist (galleries, agents)
applies to originals
not assignable - 36copyright duration of protectionvaries from 50 years - life plus 70 years
(s12) - 37copyright protected worksoriginal literary, dramatic, musical (s3 - ss1 - defines literary work - can be computer programme) or artistic (s4 - ss1 defines - any art - irrespective of quality) works - 70 years after death
sound recordings, films or broadcasts
typographical arrangement of published editions (s8) - 38copyright fixation requirements3(2)
literary, dramatic, musical work must be recorded in writing or otherwise, before it has copyright - 39copyright transfer of rightscan be full or partial, whole duration or partial
- 40copyright unprotected worksobscene, blasphemous or immoral works
- 41copyright joint authorshippossible
- 42copyright protected rightsss16-21
owner has exclusive right of reproduction, distribution, rental/lending, public performance, communicating with public, adaptation - 43copyright infringementCopyright in a work is infringed by a person who without the license does any of the acts restricted by copyright
- 44copyright infringing actsclaimant must show on balance of probabilities that:
1. D carried out one of activities
2. D’s work was derived from the copyright work (causal connection)
3. act was carried out in relation to the work or a substantial part thereof (substantiality is judged against copyright work and is matter of impression, determined by quality not quantity) - 45copyright secondary infringementpossessing or dealing with infringing copy – possesses, sells or lets, exhibits or distributes – which he knows or has reason to believe is an infringing copy of the work
- 46copyright defencespublic interest
fair dealing - 47IP owners have their own human rightsin respect of property Protocol 1 art 1 ECHR and art 17 (2) EU Charter (Anheuser-Busch Inc v Portugal 2007)
relationship between rights has led to several cases and international developments (Ashdown v Telegraph 2001)
HR have also been the base for challenges to the power of IP (Doha Declaration on TRIPS Agreement and Public Health 2001)
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- Flashcards on Intellectual Property, created by Eilidh Murray on 26/11/2017.
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- Eilidh Murray
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