Intellectual property - topic 11 Flashcards
What is property?
property is the area of the law concerned with everything which can, in our legal system, be owned
Do Intellectual property rights last forever?
No, unlike property rights over tangible property, IP rights do not last forever
Characteristics of intellectual property
negative rights - the right to prevent others from doing certain things
territorial - they are national, not international, in scope
Main categories of intellectual property - statutory
copyright act 1994
trademark act 2002
Main categories of intellectual property - non-statutory
Breach of confidence (equitable breach of confidence or contractual breach of confidence)
Tarzan presley case
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
What is the exception to the territorial rule?
Copyright - if you have copyrighted something in NZ it is automatically copyrighted everywhere in the world
Can the intellectual property be protected by contract?
Yes! IP may also be protected by contract
Contract law is used to commercialize or exploit intellectual property - by using, selling, licensing, franchising
Copyright
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
Telstra Corporation Limited v phone directories company pty ltd
used the numbers to make it locally however, was copyrighted
Section 15 of the copyright act states:
Section 18 of the copyright act states:
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
What are copyright owners’ rights?
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
Beckmann v Mayceys Confectionary
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
What are the 3 principles of primary infringement of copyright:
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)
Radford v Hallensteins bros
breach of copyright as he owned the statue
Remedies for infringement of copyright
Civil remedies: injunctions delivery of infringing copies account of profits damages
What are trademarks?
trademarks are part of brands
trademarks can be registered under the Trade Marks Act 2002 however registration is not compulsory
What is the registration process for trade marks?
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)
Requirements for trademark registration?
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)
What are trademarks that can not be registered?
laudatory (praises the goods/services) eg bestwood, tasti, treat, perfection
descriptive examples: pro shop, pro- fit, apple for fruit
four categories of infringement section89 for registered trademarks?
poos
what do the courts have to look at when considering infringement or not for trademarks?
the look and sound of the mark
overall impression of the mark including the idea
the goods and the customer
all surrounding circumstances
