COML201 WK11 L21-22 Property Law - Intellectual Property

Question 1

What is intellectual property?

Answer 1

Intellectual property is a type of personal property, more specifically intangible property.
Intellectional property refers to the creations of the human mind which intangible

Question 2

What is copyright?

Answer 2

Copyright is a right that is automatically created when your work is created and in most circumstances last for your lifetime plus 50 years.
Copyright also automatically arises in most other countries in the work.
Copyright allows you to recognise your rights over your work.
You can licence others under your copyright ot sell your copyright to another person.
Before you use a copyright work, you must contact the owner and request permission, also known as a licence or clearance.
If granted, the licence will usually specify the ways in which the work can be used.
Usually the licence holder will have to pay the copyright owner for the use of the copyright work.
You can take legal action against a person who infringes your copyright by, for example, copying, selling, performing, or communicating your work without permission in New Zealand or most overseas countries.

Question 3

What legal action can be taken when a person infringes on your copyright?

Answer 3

You can take legal action against a person who infringes your copyright by, for example, copying, selling, performing, or communicating your work without permission in New Zealand or most overseas countries.
Legal action may result in compensatory damages, injunction, or a portion of profits earned from the use of the copyright work

Question 4

What is a patent?

Answer 4

A patent is a right that is granted for an invention.
A patent gives you the right to stop others from making, using, or selling something you have invented for up to 20 years. Your rights only exist in the country or region where your patent is granted.

Question 5

What is required of the invention to be able to apply for a patent?

Answer 5

The invention;
1. must be novel, meaning it is interestingly new or unusual;
2. involve an inventive step, inventive meaning showing creativity or original thought; and
3. be useful

Question 6

What remedies are available for an patent infringement?

Answer 6

Civil action
1. Compensatory damages
2. Injunction
3. A portion of the profits made from the making, use, or selling of the invention

Question 7

What is a trade mark?

Answer 7

A trade mark is a sign that includes words, logos, shapes, colours, sounds, smells, or any combination of these used to distinguish your business and its goods or services from others.
They can last up to 10 years before renewal.
The benefits of registering a trademark include;
1. Exclusive right to use the trade mark throughout New Zealand to promote the goods and/or services it covers
2. Legal protection to deter others from trying to imitate your brand
3. A way to distinguish you business from others
4. Added value to your business that can increase over time as the mark becomes established in the market
5. The ability to sell of assign the trade mark to another person or business, or license its use to other parties

Question 8

What is the tort of passing off?

Answer 8

The tort of passing off is an action that is available if another party tries to use your unregistered trade mark in a way that misleads or may mislead consumers to believe that their goods or services are yours.
To succeed in an action for passing off, you must prove that
1. You have significant goodwill in the unregistered trade mark
2. That the defendants use of the unregistered trade mark has or will mislead consumers to believe that the defendants goods or services are yours; and
3. That this has caused or will cause damage to the reputation of your business

Question 9

What are the three requirements for an action for passing off to be successful?

Answer 9

1. You have significant goodwill in the unregistered trade mark
2. That the defendants use of the unregistered trade mark has or will mislead consumers to believe that the defendants goods or services are yours; and
3. That this has caused or will cause damage to the reputation of your business

Question 10

What are the potential remedies available as a result of a successful action for passing off?

Answer 10

1. Compensatory damages
2. Injunction

Question 11

How can action be taken under the FTA for use of an unregistered trade mark by another party?

Answer 11

If another party uses your unregistered trade mark in a way that may lead a consumer to believe that their goods or services are yours, it may be considered misleading or deceptive conduct and therefore also fall under the FTA
Under the FTA, you do not have to prove damage.
Successful action under the FTA may lead to compensatory damages