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Intellectual Property Flashcards

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1
Q

Why is IP protected

A

Justification

  • Economic (incentive for people to create, as they will get compensated)
  • Moral/Natural (The creator deserves credit from their work)
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2
Q

What are the objectives to protect IP

A
  • Maintain competition
  • Encourage the production of wide range of quality goods and services
  • Underpinning economic growth and employment
  • Sustaining innovation and creation
  • Promoting technological and cultural advances
  • Enriching the pool of public knowledge
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3
Q

Tell about why IP are vital asset to the business

A 
Protects also the customer goodwill.
Organisations own assets (2 types)
1) Commercial assets
2) Intellectual assets
E.g. nike, coca cola shape, you dont want the public to be fooled, unauthorised use or illegal use may result in prosecution
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4
Q

Tell about commercial assets

A

The form of traditional property - houses, cars

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5
Q

Tell about Intellectual assets

A

The jewels in the crown to many organisations (strong branding)

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6
Q

Tell about IP in business related to family

A
  • Protection of property, can be added to the will
  • Inherit of family business and intellectual property as part of inheritance
  • Follow a dream to turn aspirations into commercial reality
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7
Q

Why is IP great in terms of technology

A

Often responding to a problem with a flash of inspiration, improves existing technologies
Sourcing from home, work environment or even hobbies

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8
Q

What are intellectual assets (4)

A

1) Patents
2) Trade Marks
3) Designs
4) Copyright
Correct use and application may mean the difference between success and failure

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9
Q

Tell about patents

A

Invention protects functions of product. Protection period of 20y provides the opportunity to take full advantage of the technology

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10
Q

Tell about trade marks

A

Brand external face of the company, often regarded as the most powerful piece of advertising a company is ever going to get. Promotes recognition and customer loyalty, lasts forever is kept in use, allows opportunity to diversify within a brand and enable franchise operations

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11
Q

Tell about the designs

A

Protection of the external appearance of the product, lasts for period of 25 years

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12
Q

Tell about copyright

A

Automatic unregistered right (you just need to prove its yours) seven types. covers artistic and literary works and lasts for a period of 70years after the authors death

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13
Q

What are the seven types of copyright (6)

A
  • original literary, dramatic, musical and artistic work, including illustration and photography
  • original non-literary written work, such as software, web content and databases
  • sound and music recordings
  • film and television recordings
  • broadcasts
  • the layout of published editions of written, dramatic and musical works
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14
Q

What are the regulations of IP (international)

A 
International Treaties & Conventions
European Union (Community Trade Mark)
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15
Q

What are the national legislation of IP

A
  • Statute law

- Common law

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16
Q

What are the Statute IP regulations (4)

A

1) Trade Mark Act 1994
2) Copyright Designs and Patents Act 1988
3) Patents Act 1977
4) Registered Designs Act 1949

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17
Q

What are the two IP regulations under Common Law

A
  • Passing off

- Confidence

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18
Q

Tell about Passing off

A

Protects traders from unauthorised use of registered trade marks and other representations to mispresented their goods and services to someone else. I.e. a trader tries to take unfair advantage of another trade’s reputation, passing of his products as that supplied by a more reputable trader

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19
Q

What are the three elements of passing off that you need to prove?

A
  • Goodwill (establish the customer connection to the brand)
  • Misrepresentation (cause people to be misled due similar packaging)
  • Damage (loss in revenue due imposter)
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20
Q

Tell about Passing off case Reckitt & Colman Products v Borden Inc (1990)

A

The ‘Jif lemon’ case. is a leading decision of the House of Lords on the tort of passing off. The Court reaffirmed the three part test (reputation and goodwill, misrepresentation, and damage) in order to establish a claim of passing off. per Slade LJ: Reckitt, sold lemon juice under the name “Jif Lemon” which came in plastic yellow container that was shaped like a lemon. Borden, a competitor, started to produce lemon juice in a similar lemon-shaped plastic container that was only slightly larger with a flattened side. Reckitt sued Borden for passing off their product as Jif Lemon juice.

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21
Q

Tell about Trade Marks, what are they origin from

A

A badge of origin, a sign which is capable of distinguishing goods or services from those of another, sign is R in circle

Trade marks are the only form of IP which lasts for ever. Helps us to protect our brands

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22
Q

Why to use trade Marks?

A
  • Branding from the beginning, its difficult to later rebrand
  • Establish and do research over the market and niche before product launches
  • Important especially to SME
  • Consumers like to buy branded products and it is this which they will identify
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23
Q

Why does the TM research pay off?

A
  • People try to protect their image, can also affect to the customer confidence
  • Create distinctive brand - your prime opportunity to create a brand identity
  • Check the IP Office database to establish if others have a adopted this brand or something similar
  • Your brand will exist in a class which is the most appropriate for your field of business
  • Do your research - mistakes can be expensive and destroy customer confidence
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24
Q

How to get TM

A

You may apply it alone, or you may use the services of a Trade Mark agent who can add value to your application

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25
Q

Trade marks classification

A

34 classes for good, 8 classes for services

E.g. Sound - musical notation
Shapes - photograph/drawing
Colour - Specimen of shade; register
Scent - this is very difficult

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26
Q

TM application

A
  • Application needs to be specific

- Bona file intent to use the mark for the prescribed goods or services

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27
Q

What is the objections that are made

A

By Examiner or 3rd party

-Absolute ground of refusal (based on mark)-Relative grounds of refusal (conflict with 3rd party rights)

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28
Q

TM registrations: what can be registered

A

-A sing capable of being represented graphically which is cable of distinguish goods or services of one undertaking from those of other undertakings
Must not fall on the absolute grounds of refusal.

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29
Q

What are the absolute grounds of refusal -6

A

1) Non-distinctive (apple)
2) Descriptive of their underlying goods/services
3) Customary expression of the trade (unless a distinctive character has been developed in the relevant market)
4) Consisting exclusively of shapes which result form the nature of the goods themselves, necessary to obtain a technical results, or which give substantial value to the goods

5) deceptive to the public
6) Contrary to public policy/morality

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30
Q

Registration of TM can be…

A

very broad and inclusive concept - words (names, letters, numerals) packaging, shapes of goods - colours, sounds, scents, tastes..’anything that conveys information’

31
Q

Other kinds of goods and services which can be TM

A 
Kind/type – ‘personal’ for computers
Quality – ‘perfection’, ‘best’
Quantity – 454 for butter (454g packs)
Intended purpose
Value – ‘buy one, get one free’
Geographical origin
Time of production – ‘same day delivery’, ‘winter 2004’
32
Q

What is said about TM registrations

A

Section 1(1) does not provide an exhaustive list of signs which can be potentially registered as trade marks. The following categories of trade “signs” can be registered provided that they meet other criteria for registration specified by the Act.

33
Q

Tell about TM colours

A

In some cases the unique colours which a business uses to distinguish its goods or services can be registered as a trade mark although will depend on the individual circumstances. The following cases were decided in terms of the Trade Marks Act 1938 but are equally applicable to the Trade Marks Act 1994

34
Q

What are the relative grounds of refusal?

A
  • Conflict with earlier identical/similar mark for identical/similar goods
  • Conflict with mark of repute
  • Conflict with earlier rights
  • –Confusing similarity
  • –Can be overcome by obtaining permission of holder of the earlier mark
  • –UK IP office conducts search of national, Community, international trade marks
35
Q

Tell about confusing similarity related to TM

A
  • Recognition of earlier trademark on the market
  • Association that can be made between registered mark and the sign
  • Degree of similarity between mark/sign and product/service…likelihood of confusions
    1) Consumer perception - visual, phonetic, conceptual similarity (the more the distinctive the earlier mark, the more likely it is to establish confusion)
    2) Goods/services - distinct re their nature, end users, cost, normal method of purchase/use
36
Q

Tell about conflict with mark of repute

A

Mark is identical or similar re dissimilar goods - earlier mark of repute, later sign takes unfair advantage/detrimental to TM’s distinctiveness or reputation, no confusion required

37
Q

Tell about Infringement

A

Once registered, TM protected for 10y, renewable every 10years. Holder may take action if TM or similar mark used on packaging, stocking/offering (inferior) goods for sale under the TM, importing/exporting, using TM on business papers or advertising.

38
Q

When it TM revoked

A

If not in genuine use for 5 years without proper reason/use of TM liable to mislead public

39
Q

Tell about McDonalds and McCurry

A

McDonald’s argued that the use of the “Mc” prefix infringed its trademark.
But the Federal Court in Kuala Lumpur ruled that there was no evidence to show McCurry was trying to pass itself off as part of the McDonald’s empire.
The owner of McCurry insists its “Mc” prefix is an abbreviation for Malaysian Chicken Curry.
Ruled the application for this was dismissed after a long line of legal battle.

40
Q

Tell about patents

A

Patents act 1977 rules

  • Invention/innovation must be new and not known anywhere in the world
  • Invention must have an inventive step not obvious or a simple adaptation
  • Inventions must be industrially applicable
  • The unwritten rule: it must be commercially viable - most importantly, must be a market.
41
Q

What are the benefits of patents? 6

A

1) An agreement between the state and inventor fixed period of time 20y exclusive rights to this innovation
2) Solution to technical problems
3) State gets access to the technology - stops others from re-inventing the wheel
4) International registration available but comes at a cost so consider wisely
5) IP Office UK (Gwent) ; European Patent Office (Munich)
6) People want to be rewarded for the innovation

42
Q

How to avoid other stealing your ideas

A
  • Don’t male details of your innovation known before filing
  • If you want to work with others use Non-Disclosure or Confidentiality agreement
  • Do work by yourself (free information opportunity to search for existing patents and to familiarise yourself with structure of a specification)
  • You can DIY but a patent agent provides a value added service
  • Employees whose invention (made during course of employment) makes significant contribution to their employers can get compensation - a rare feat
43
Q

Patent case Kelly and Chiu v GE Healthcare Ltd

A

Compensation was ordered to continue. Kelly’s invention was worth 50million to Amersham International (taken over by GE), the judge held Kelly was entitled to £1million and Chiu (assistive contribution) to 500,000million as adding value with their innovation to the employers profitability.

44
Q

Tell about The Patents Act 1977 section 39-42

A

provide a self-contained employee invention compensation code which, till recently proved more or less impossible for inventors to operate to their advantage, largely on account of the difficulty of showing that the patent resulting from their efforts conferred an outstanding benefit upon their employer. Now it is easier, in that it is only the invention, not the patent, that must confer the benefit.

45
Q

Tell about Case of Phil Robinson

A

Invented a bike bump which is attached to the bike saddle. He was an innovator by hobby, design student who took the technology and refined it further, worked with DAHON (largest manufacturer of folding bicycles) but used confidentiality agreements, retained the ownership of the resultant IP. He did commercial work on it, and field test, brand development was Zorin

46
Q

Tell about registered Design 4

A
  • Protects the external appearance of a product
  • 12 months window to test the market before you file
  • Lasts for 25years and costs £60 for the first five years
  • Registration available across the UK
47
Q

What can be a registered design?

A
  1. PACKAGING
  2. RECORDING/COMMUNICATION
  3. FURNISHING
  4. HOUSEHOLD GOODS
  5. GAMES/TOYS
48
Q

What does ACID stand for? and what is an example case for this

A

Anti Copying In Design

Robert Welch Designs Ltd and Argos case, resulted in large payments over roaylties and legal costs

49
Q

Tell about copyrights

A

Copy right is the automatic right - not registered - provides people who produce creative work to take ownership over what they have created. C in the circle.

50
Q

How long does a copy right last?

A

70 years after the authors death

-Copyright material can earn revenue long after the original author has passed away

51
Q

What about copyright as a property right?

A

As a property rights to works it can be passed on as part of an estate, sold, licensed or given away

52
Q

To who is the copyright for?

A

everyone, automatic if you can prove its your work. For authors, musicians, artists, photographers… Musicians rely on rights as a means of earning royalties from their creation

53
Q

What are the key points of copyright

A

Its up to the artist to claim that they have been copied, retain original to prove ownership.

ONLY TANGIBLE EXPRESSION, ideas dont count.

54
Q

Tell about authorship

A

Author - first owner of the work, but the right or licence might be sold in order to exploit it: Publisher.. Recording company.
Author remains moral rights and gets royalties

55
Q

Tell about ownership

A

Owner - holds all economic rights to control commercial exploitation of the work (and takes legal action against copyright pirates/illegal file sharers). Joint authorship can be very problematic.

56
Q

Tell about revenue flow regarding a copyright

A

Copyright lasts up to 70y after authors death, there is an opportunity to earn a lot of revenue

57
Q

Tell about Tolkien’s revenue

A

Tolkien’s work which was sold for £10,000 has scooped millions and will continue to do so until 2046

58
Q

Tell about Elvis Presley’s revenue

A

Elvis Presley’s estate top dead earner £25.2 million per annum

59
Q

Tell about John Lennon’s estate

A

Earns £12.4 million

60
Q

What are the trends/developments affecting IP

A

Pace of innovation/technological change
-Increasing value of IP (scope of protection & commercial exploitation)
-Technology to harm IP (mp3 technology, internet)
Changes in business structure
-Outsourcing, sub-contracting
-Reliance on brands &logos as basis of market identity
-Franchising & merchandising

61
Q

changes in marketing practises and IP

A
  • Brand-based marketing
  • Use of imagery and associations with brands in marketing activities (sponsorship, product endorsement)
  • “image-based”industries (character and personality merchandising)
  • Brand v Brand competition
62
Q

Active Q: Why do we have intellectual property law protection?

A

Figure it out

63
Q

AQ: What are the elements that a pursuer must establish to constitute the action of Passing Off?

A

Study

64
Q

AQ: What is a trade mark? Summarise the procedures to successfully register a Trade Mark and explain the advantages for doing so

A

Revision is the key

65
Q

AQ: Who is entitled to copyright protection

A

hmm

66
Q

AQ: What types of works are protected (copyright)

A

Know by heart

67
Q

AQ: Copyright law gives the owner the right to do what?

A

Under copyright law copyright owners also have the exclusive right to prepare derivative works based upon the work as well as the right to: Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

68
Q

AQ: What are the moral rights

A

Explain

69
Q

AQ: What defences are available to someone accused of copyright infringement?

A

• You can use for educational purposes
• News support or criticism
• Accidental inclusion
• Investigation for government
• Anything recorded for later viewings (time shifting)
• Producing for backup for personal computer
nonprofitable organisations don’t need to pay for music rights

70
Q

AQ: What are the basic criteria in determining the patentability of an invention?

A

Must be new and must be for commercial use and must be a market

71
Q

AQ: What are the basic types of patent claims?

A

1) Independent claims which stand on their own
2) The dependant claim which depends on a single claim or on several claims and generally express particular embodiments as fall-back positions
3) Product claim - physical entity, product or material or an apparatus
4) Process claim - how the product is used or processed

72
Q

What does common law confidence mean?

A

Breach of confidence intellectual property, also referred to as the law of confidence, is used to protect confidential information, like registered designs and patents, by keeping people who have obtained the information in confidence from using it to benefit while damaging the person or organization that shared the information. When seeking action against someone for breach of confidence, the main goal of the person filing the claim is to stop the other person from sharing confidential information that’s of value to the one pursuing the action.

73
Q

Name of the Jif lemon juice case

A

Reckitt & Coleman Products v Borden Inc 1990

74
Q

what is teh invention case that resulted in royalities

A

Kelly and Chiu v GE Healthcare Ltd

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