Intellectual property - topic 11

Question 1

What is property?

Answer 1

property is the area of the law concerned with everything which can, in our legal system, be owned

Question 2

Do Intellectual property rights last forever?

Answer 2

No, unlike property rights over tangible property, IP rights do not last forever

Question 3

Characteristics of intellectual property

Answer 3

negative rights - the right to prevent others from doing certain things

territorial - they are national, not international, in scope

Question 4

Main categories of intellectual property - statutory

Answer 4

copyright act 1994

trademark act 2002

Question 5

Main categories of intellectual property - non-statutory

Answer 5

Breach of confidence (equitable breach of confidence or contractual breach of confidence)

Question 6

Tarzan presley case

Answer 6

Edgar Rice Burroughs is the author of Tarzan - he is now dead, Edgar Rice Burroughs inc is the company that manages the affairs of ERB heirs - owns Tarzan. Nigel cocks ignored this and put together Tarzan presley and put it on sale for nz, ERB inc was not happy and incorporated lawyers. Its been over 50 years since ERB died so no more copyright protection as it was only being sold in NZ. ERB inc ways round this was to purchase the book and bring it into UK

Question 7

What is the exception to the territorial rule?

Answer 7

Copyright - if you have copyrighted something in NZ it is automatically copyrighted everywhere in the world

Question 8

Can the intellectual property be protected by contract?

Answer 8

Yes! IP may also be protected by contract

Contract law is used to commercialize or exploit intellectual property - by using, selling, licensing, franchising

Question 9

Copyright

Answer 9

a property right that exists, in accordance with this Act, in original works of the following descriptions:

a) literary
b) sound recordings
c) films
d) communication works
e) typographical arrangements of published editions

original = it must not be copied

Question 10

Telstra Corporation Limited v phone directories company pty ltd

Answer 10

used the numbers to make it locally however, was copyrighted

Question 11

Section 15 of the copyright act states:

Section 18 of the copyright act states:

Answer 11

work must be recorded (can’t just be in your head)

The creator of the work has to be a NZ citizen or resident or company, or a citizen or resident r company of a recognized country

Question 12

What are copyright owners’ rights?

Answer 12

The right to copy - for infringement, copying must have actually occurred. Copyright is the protection of the expression of ideas, not the ideas themselves but instead how you express it . (You must have actually seen or been exposed to the original version for it to be copyright - you can unconsciously copy something)

The right to perform the work -
You need to pay to have permission to have the right to play other peoples music/ work in your store

The right to make an adaptation - ie translate or convert the work

Question 13

Beckmann v Mayceys Confectionary

Answer 13

Beckmann v Mayceys Confectionary - important case - owned the right to crocodile shaped sweets and Beckmann copied it however no actual copying occurred as crocodiles look a certain way - no infringement

Question 14

What are the 3 principles of primary infringement of copyright:

Answer 14

causal connection - a link between the plaintiff’s work and the defendant’s copy - the defendant has to have actually seen the original to copy

Objective similarity - copying does not have to be exact however it must be similar and just because it doesn’t look the exact same doesn’t mean its infringing (court focuses on similarities, not differences)

Question 15

Radford v Hallensteins bros

Answer 15

breach of copyright as he owned the statue

Question 16

Remedies for infringement of copyright

Answer 16

Civil remedies: 
injunctions 
delivery of infringing copies 
account of profits 
damages

Question 17

What are trademarks?

Answer 17

trademarks are part of brands

trademarks can be registered under the Trade Marks Act 2002 however registration is not compulsory

Question 18

What is the registration process for trade marks?

Answer 18

1) application for particular goods / services in specific classes - a registered trademark does not mean it is registered over all goods and services. There are 45 diff classes and within each one their is a range of goods and services
2) examination of the application
3) acceptance, publication and registration
4) renewal (10 year blocks)

Question 19

Requirements for trademark registration?

Answer 19

in order for a sign to be trademarked it must be;

1) capable of being registered graphically
2) capable of distinguishing goods or services (marks must be inherently distinctive, descriptive marks are more difficult to register)

Question 20

What are trademarks that can not be registered?

Answer 20

laudatory (praises the goods/services) eg bestwood, tasti, treat, perfection
descriptive examples: pro shop, pro- fit, apple for fruit

Question 21

four categories of infringement section89 for registered trademarks?

Answer 21

poos

Question 22

what do the courts have to look at when considering infringement or not for trademarks?

Answer 22

the look and sound of the mark
overall impression of the mark including the idea
the goods and the customer
all surrounding circumstances