International Intellectual Property Law and Policy
Introduction to Intellectual Property and Its Role in Modern Society
In this assignment, the concept related to intellectual property rights has been discussed. These rights give the creator exclusive rights for the use of the creation of his minds. They usually provide the creator exclusive right to the use of his creation over a certain period. The intellectual property right may include copyright, and trademark in respect to the creation of the new invention. The patent has been considered as an insurance policy against theft that signified if one does not have the patent and then nothing seems stolen, then it would be fine. However, if one does not need it and then experiences it, then it would result in a painful experience. These all have an important place in the modern business. Enterprises that are keen in founding out a business, which is based on new products invariably, can consider the patent as the key. These legal rights assist in providing an exclusive right to the person for the specified period. Intellectual property rights play a vital role in the modern economy.
1. “Intellectual property rights are legal tools that help individual creators and inventors as well as corporations to obtain commercial success and maximise profits. Their protection, however, cannot excessively reduce users’ and competitors’ opportunities to make use of the IP-protected assets, for example, for research or private use purposes.”
Comment on this statement by referring to academic commentary and case law authority
Intellectual property rights have been defined as the ideas, innovations and creative expressions that provide inclusive rights to the inventors or creators in order to gain the commercial benefit from their innovative as well as creative ideas. There is various kind of intellectual property rights that will be comprised of the patent, copyright, trademark etc. Intellectual property rights have been generally used for identifying, planning, and commercialising by protecting the rights of the intervention. The industry should revolve around its own management style, and strategies per its own speciality. They are the legal rights given to the individual for the protection of his invention for a specific period.
Intellectual property is considered as something that has been physically created by you. A simple idea has not been considered as intellectual property. For example, The idea for the creation of the work does not count but the words written in it count the same.
If someone has the right kind of intellectual property rights, it will assist in stopping stealing with the people with the name mentioned on the products, the kind of inventions, the design that has been made for the product, things that have been written, made for the product. Intellectual property has more than one business owner that has been generally belonging to the individual or business that can be sold or transferred to another individual. For example: If an individual has been self-employed, then they can execute the work if others have done the same work owing to the rights that have been assigned by someone.
Benefits of Intellectual Property Rights
It provides exclusive rights to the original inventor, which will provide them with the opportunity to share the data in spite of keeping it confidential. It assists in providing legal protection and provides them with the opportunity for their work. All the rights granted under the intellectual property will help in socio and economic development. Various provisions have been made for the protection of laws and design. The government has been amending various laws and provisions for the protection of the same.
On the other side, copyright will assist in protecting the original work, which can be further fall under the various artistic fields that may include literary, drama, intellectual and musical. It will help in making the protective shield, which has been considered a good growth rate for writers, musicians etc. that will induce them towards indulging into the more creative work. By copyright their right of creation, the holder of the copyright will help in enjoying the following rights which will include using, reusing, and reproducing the copies and then resell them, importing and exporting the overall work. The other individual must be kept free from creating any kind of derivative work, the individual can publicly demonstrate the work and then sell or pass on to the other individual as well. The individual can engage in the transmission the work with the help of radio or video.
The main advantage of intellectual property right will include having a competitive advantage in the market for small businesses and it will result in the enhancement of the corporate value for the company. It will also result in marketing the products and services of the Company and more finances can be obtained for the businesses in an easier manner. The opportunities for the export can be increased in a better way.
Keeping aside the advantages, the main disadvantage of intellectual property will include the occurrence of additional costs and a reduction in the quality of the same.
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- Enhance the market value for the business: The intellectual property helps generate income for the business through the licensing or sale of the commercialization of the products and services that will result in improving the market profit and maximising the profits. During the time of the sale, it has been concluded that mergers and acquisitions, which have registered and protected IP assets, can raise the value of the business in a good manner.
- The ideas can be converted into profit-making assets: The ideas can be converted to having their own little value. Intellectual property helps out in turning ideas completely into successful products and services. The licencing of the copyright and the patent helps in leading to the stream of royalties that will boost up the business line.
- Marketing out the business products and services: The intellectual property right is considered as essential for creating an image for the business. The individual needs to think for the logo, design, and trademark that need to be associated with their product. The use of intellectual property will help you in differentiate the product and services and then assist in promoting the business.
- Helps in getting finance: The intellectual property can be used for raising out finance by using the sale, licensing and then using as collateral for debt financing. The intellectual property can be further used while applying to the funds from the government or any kind of loans and subsidiaries for the same.
- Provide export opportunities for the business: The intellectual property can enhance the competitiveness of the company in the exports markets. In order to gain the competitive advantages in the abroad, good brands and designs need to be used seeking franchising agreements with the companies that are established in the overseas market or will help in exporting the products.
By today's pace of innovation and development it will enhance the competitive advantage and protect the new ideas and inventions. Intellectual property must be considered as the main priority for most of the Companies. Most of organisations fail to recognise the intellectual property as the strategic asset that will put the competitive and margin in relation to the profit at high risk in the future. But prioritising and safeguarding the IP assets will help in keeping organisations ahead of their competitors that will result in future growth.
- Managing the risk : The business organisations need to be informed in respect of the many major changes and expert advice need to be taken in respect of the legal and any business risk so that landscape in respect of the same keep on shifting.
- Forming the innovation-driven value: The research and development need to be done to find out innovations that have been mattered for the future business growth and opportunities. The IP assets need to be operated efficiently for the purpose of creating and growing the IP assets.
- Maximised return: In order to maximise the return, the partnership needs to be developed so that patents must be commercialized that has been evolved into the assets.
- Managing the cost: There should be informed decision with respect to the investment for maximising the return over the budget in order to justify the expenses incurred on to the businesses.
- Business strategy must be kept supported: The strategy of the business must be kept for gaining out the competitiveadvantages in order to develop the product strategies.
Trends that demand change
There are five major trends, which will drive the need for the intellectual property to evolve in a substantial manner:
During the first, technologies changed over the period and are crossing the industries and the trends kept on changing over time. For example Laws of the patent prior to the year 2010 for robotic laws barely existed but now day’s changes in the technologies will be brought a patent applications for more than 20 times as compared to the last five years. Most of the leading IP organisation has changed its preference from the invention-driven function to the competitively driven function. Formerly, the company needs to go for the patentable creations that will go on the review process relying on the product features. However, with the changing scenarios, intellectual property provides an exclusive right to exclude others in the race of the competition. The rising of economic condition of China, will provide a lot of opportunities as well as threats. During the year 2011, the fillings in respect of the patent application grow more than 20 percent in the year, which was the result of government initiatives.
Unregistered UK design right
The unregistered UK right is the UK protection right, that will automatically protect the designs from the 10 years from the moment it has been sold or from the 15 years from which it has been created whichever occur in the earlier time. In accordance with the European law, the community designs of the unregistered community last for the period of 3 years from the date on which the design was made to the public within the European community.This right will assist in stopping the person form copyright the design that has been made. Provided it has been applicable in respect to the shape and configuration of the objects or more simply how designs are arranged in a different manner. In order to claim the design right, a documented proof need to be created about the creation ofthe design. The protection of the intellectual property is considered essential or prominent in order to avoid the potential of the ideas that can be stolen.
Rights avail for protection of intellectual property rights
Forsecuring, the intellectual property rights, the securing of the trademark can have the following rights that will be comprised of taking the legal action against anyone that will use the trademark without any permission, which will include counterfeits. The ® symbol needs to put next to the trademark that will help in demonstrating that the trademark must be yours which will depict that others not to use the same. The trademarks must be sell and licence to the third parties.
It has been considered to register the look in respect of the product that has been designed and protected so that others could not steal it. The intellectual property rights depict that the design needs to cover up the appearance, physical shape, configuration, and the decoration and by registering the same, it can be prevented from using the same for the 25 years and designs can be renewed after the 5 years upto the period of 25 years. The registration of the design would take about 1 month and it needs to meet out the criteria which will include it must be new, it cannot be offended, it need not make any use of the protected emblems or flags and it must not be an invention of the working of the product.
The intellectual property rights have been bifurcated into four main areas that will include:
It refers to the work that has been recorded in some other way, their right exists in the items that may include literary, artistic, and musicaland includes music as well as films recordings. The copyright assists in providing specific right in regard to the work done, which will prohibit the unauthorised actions and it will assist in providing the author to take the legal actions in against any work that will contain plagiarism. It protects the work and helps others from using it without any option. The copyright in the UK will be available automatically. No individual need to pay for the same and apply for the same. There is no registration place where registration can be made for the same. The copyright can easily be available automatically if any of the individuals can create original literary, dramatic and other artistic work that will include artistic photography with illustration, it will include non-literarywork, which may include software, databases and web content. It will include sound recordings, television and music recordings and the layout that will contain the published editions of the dramatic works. Copyrights prevent the individual from duplicating or copying the work so that no one distributes or copy the work and then sell the same free of charge or on sale.
No individual will be allowed forgiving the copies of the work to others, depicting the work or showing the work to others, framing an adaption for the work concerned and putting any work on the internet on which copyright need to be done.
IN OVERSEAS MARKET
The work of the copyright can be protected in the other country by entering into agreements through international countries and in general, most of the countries copyright can generally last for the minimum period of 50 years for the dramatic, realistic or artistic works and at least for the minimum period of 25 years for the photographic works. The duration of the copyrighted work can be different in accordance with the type of work.
It is possible to have more than one copyright in respect of the single item. For example: If the musician wants to copyright its album then it can copyright in respect of the sound recording, music sheet, copyright in respect of the lyrics, copyright in the cover artwork, copyright in the text of the insert. Sometimes, joint ownership can be assigned to the individual when both of them shared some work. When the work will have joint authors to share the work, then the consent of the copyright holder needs to requirefor avoiding liability for the infringement.
If the work for the first time has been created in the course of the employment, then it would be considered as the first owner of the copyright.
Under the Copyright Act of 1842, the time for which the copyright period can last if more than 7 years or about 40 years which would be longer. In accordance with the Copyright Act 1911, it provides the copyright for a period of more than 50 years if the work has been published after July 1912. Then subsequently in the period of 1995, it was extended to another 70 years. The man's crux is to put an extension of about twenty years if the same has been published after 1911. Before the year 1956, the laws of the copyright would not take into consideration the nationality of the author.
In accordance with the 1988 act, copyright is the sound recording that has been expired after 50 years from the date on which recording has been made. If the recording has been published then 50 years from the date of its publication and if the recording is made in the public, then the initialyears from the time the communication has been made to the public.
If the unpublished work has been published after the act of 1988, and the author has been dead for more than 50 years then the work will remain in the copyright for more than 50 years from the end of its publication.
The trademark has been considered as the mark for which one party will distinguish itself from another. It provides the product with the identity that will keep him aside from its competitors. The trademark needs to be either registered or would have been used so that it must acquire some local distinctiveness. The extent of the trademark will mostly depend upon the similarity of the trademarks involved and if the trademark has been relatively simple then it is easy to defend in the court of law.
In accordance with the trademark act 1994, it states that a trademark has been infringed if the person uses the same trademark that is identical to the trademark in reference to the goods and services for which it needs to be registered. The registration of the trademark is attained through UK intellectual property office. The number of the rights has been bestowed upon the owner of the trademark. This right will assist in protecting and preventing the unauthorised use of the trademark that has been registered on the products. The registration of the trademark will take around 3 to 4 months to get register. The time limit can be increased if any comments have been received on the same. If the trademark has been registered, the register can keep it for 10 years and then it can be renewed over the period. The trademarks are registered in the classes that have been fixed for the goods and services.
Registration of the trademark
The trademark is generally registered for the distinctive mark. The more distinctive mark, the more chances of getting it popularand it has been considered easy to register the same. These marks are not available in the dictionary meanings. Words that appear in the dictionary can be registered. The distinctive words that has been appeared in the dictionary but which actually depict the words that have been used for the purpose of describing the product that has been using by them and has been considered difficult to register and the mark has been considered distinctive for its long-term use.
Registering a trademark
The formal procedure has been required for the purpose of protection of the trademark. An application needs to be made in order to register a trademark in the regional offices. The other formalities will include payment of fees and then authentication by the notary. The application then needs to be examined by the office of the registrar. The regulation in respect of the registration of the trademark will differ from one country to another. They need to be checked in order to ensure that they are distinctive and are not deceptive.
In the third parties process of registration of the trademark, opportunities need to give for the opposite parties for a contest for the trademark. The applicant possesses the right to have observations and then doing appeal for the same. A certificate has been issued to the owner about the giving of exclusive rights that have been effective from the date of registration.
In order to get the trademark done, it is necessary that both the owner and the third parties must have all the informationuntil date. After the validation of the registration, data and information in respect of the owner and the mark must be published in the official gazette.
The trademark must be removed from the registrar office due to the number of reasons, which may include failure to renew the right in respect of the trademark, failure to use the trademark, and it will result in the serious consequences resultant in the loss of rights. It must be protected within the trademark territory in which it was registered and it has been possible to enhance the protection internationally through a number of international agreements.
Representation of the trademark
In general, the trademark will have a visual sign that will distinguish them with the other sign and it has been considered impossible to list them. Trademark sign can be made from words, letters, numerals figures, a combination that has been made from the colours and three-dimensional signs which will depict the trademark. The words will comprise of names, their family names, geographical names, a combination of different letters or three-dimensional signs.
It will contain a letter and numerals will contain a combination of letters, a combination of numbers as well as letters or a combination of both. The devices that can be further used for symbols and any kind of three-dimensional signs.
Infringement of the registered trademark
As per the Trademark Act, 1994 if the trademark has been registered then the rights have been granted to the owner that will include right in respect of unauthorised use of the particular trademark in relation to the goods and services that has been specified by the registrar. Apart from this, the world trade agreement states that the owner of a registered trademark must possess all the rights in respect of the protection of the trademark from all the third parties that are using the same goods and services.
The trademark infringement must happen when the mark was used in the ordinary course of business and the use of it falls within any of the acts that have been prescribed under Trademarkact, 1994.
Course of Trade
In order to establish whether the trademark has been taken place in the course of trade, then the European court of justice in the year 2002 in the case Arsenal Football club v/s Matthew Reed states that it needs to use in the course of the commercial activity for the purpose of gaining and not that of private purpose. In general, the course of practice, if the company or person using the trademark for generating the money, then it will come under the course of trade.
Conflict with the mark of repute
The infringement in respect of the cases whereby similar goods or mark has been used for the goods that are considered not identical in respect of the goods and services under which the registered trademark depicts. For the purpose of establishing infringement, owner of the trademark need to depict that mark must have reputation within the UK and that may include using of such mark will result in the unfair advantage in the market and as a result of this, there must be have some detrimental effect on the reputation and character of the registered trademark. The unfair advantage will constitute use of the similar or the same mark must be considered as an attempt to have an association within the trademark and then exploiting the goodwill, which has been associated with the trademark. The mark in respect of the goods has been considered detrimental for the distinctivecharacter of the registered mark that signifies that the mark associated with the goods and services will no longer be recognised in the immediate situation.
Case law related to the trademark
In the case related with the Brew Dog vs. Wolf Pub, Brew Dog that has been renowned as a British Scottish craft beer company that has been threatened by the independent pub with the legal action over the name. The two-person named Sallie and Joshu, wolf pub has been forced to drop the original plan to name their watering hole “The Lone wolf” in the case when the Brew Dog has been issued with the legal warning. At the same time, the beer company launched the vodka and renamed as the lone wolf.
In accordance with the Guardian, the publicans were scared for using the name as the Brew Dog has the financial muscle to fight back and decide to change the name from pub to the wolf and then adjust the branding in accordance with their own expenses. In opposition to the same, McFadyen told that they had an email with the solicitors, which states that the trademark spirit was coming out of the same. The finance and the money has been gone into refurbishing the same to get the place open and at the same time, it does not have any money to open the same. It has been also told to use that lot of money need to be incurred so there were a lot of panic-stricken. Then in the March 2017, BrewDog had the discussion not to pursue the pub with the founder announcing it to be a change of heart. As per the update received from the Guardian, he has been to send some of the pub cases to the brewer new sprit range.
In accordance with the legal expert, Brew Dog made the right decision and said that the brand needs to get it registered for obtaining the trademark.
UK patents are designed for protecting the invention;provide you the legal right to be taken in against the individual who will use, sells or import it without any permission. The intellectual property rights will help in outlining the framework in respect of the successful patent applications, which would include something, need to be made or used in the industry, it must be new or must be innovative which would not be result out from any modification in the something that has been already existed.
The patent needs to be registered within the office of the patent under which the protection must be sought and will demand a complete application form that will contain the full description of the invention. The invention must be clearly defined so that new information can be provided to the third parties and can be easily understood by the person possessing the specific general knowledge in respect of the same.
If the applicant of the invention resides in some other country and then filling of the same for the patent must be in another country, then an address need to be mentioned which will look on the address that will be holding on to the power of attorney. In addition to this, other formalities must be required that will include payment of fees or any sort of authentication by the public notary. Apart from it, the applicant needs to depict down the scope up to which the protection needs to be demand or requested that will contain the warning not to use the same.
After that, the relevant authorities will determine the application and the system in respect of the same must differ from one country to another and the officer of the patent will keep on determining about the scope up to which the subject matter of the patentable will fall. If the patent office will refuse to grant a patent in relation to the application made, then the applicant must be provided with the right of the observations and then appeal for the same asking for the ground on which the application must be rejected.
If all the formalities in respect of the patent have been compiled out, then the certificate needs to be issued to the owner that will provide an exclusive right to the owner from the date of the patent registration. It has been considered compulsory that the owner of the patent and third parties must have up to date information and once the registration has been completed, it has been considered as an important data with regard to the owner and the patent need to be published in the official gazette.
Analysis and Evaluation
In the today business environment, innovation has been considered as the mainstay for every business that will result in the development of the intellectual property. It is not limited to the companies that are into the technology business but are considered valuable in respect of every business that invests a large amount of fund in research and development areas for their product. A company must be proactive while implementing the IP solutions for enhancing the revenues. The goal that has been well defined must be used in respect of the attaining the objectives of the business and to get the business a better place in the overall market. If the business grows in terms of revenue, the strategy has been made in respect of the intellectual property need to protect the unique aspects related to the assets and develop innovations for exploring the new opportunities. This all can be attained with the help of the licensing that will satisfy the needs of the market in the better way.
Companies need to regularly monitor and evaluate its existing intellectual property for the purpose of determining whether it is fine with the objectives of the business or not. This will result in finding out the new ways for the leverage the intellectual property with the help of the licensing opportunities. All the successful companies will go on finding out the new avenues for the product offerings to expand or grow in the market for enhancing their sales and capture the markets accordingly. The organisation portfolio in respect of the patent needs to be considered vital for the future success in along with the intellectual property designs that will be comprised of designs, copyright, and trademarks. Portfolio management needs to effectively make and must consider the patent portfolio in accordance with the competencies and current opportunities available in the market.
By the above, it has been concluded that the issues that are faced in the intellectual property rights have been discussed. The enterprises need to invest a lot of time, energy and financials for developing new business ideas and then execute them accordingly. Registering the patent, a trademark from being stolen and copied would assist the business owner to have a competitive advantage in the end. It will make the industry to take some risk out from any kind of enterprise. Intellectual property assists in providing protection from a competitor from copying their ideas. The registration of the intellectual property has been considered as an asset. The intellectual property right has been created that will meet out the requirements for the patent, copyright, and the design. Owing intellectual property right will include buying the intellectual property rights from the previous owner.
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