Lecture 9 - Intellectual Property

Question 1

Intellectual property =

Answer 1

Fruit of human intellectual and commercial labour. Intangible property. Treated as asset to the business

Question 2

Trademark =

Answer 2

Allows owner to use distinctive mark exclusively on goods, and prevent others from using same/ similar mark. Last indefinitely. Protects owners name or product

Question 3

Trademarks must be…

Answer 3

Registered at Trademark Registry

Question 4

Copyright

Answer 4

Right to stop someone else copying your own original intellectual work/ expression without permission.

Question 5

Copyright arises…

Answer 5

Automatically, no need for any form of registration.

Question 6

Lifespan of copyright

Answer 6

Life of author plus 70 years

Question 7

Patents

Answer 7

Monopoly right over specific invention/ novel or unique method of doing something. Exclusive use of this patent for 20 years.

Question 8

Patent must be…

Answer 8

Applied for and registered at the Patent Office before valid

Question 9

TM symbol

Answer 9

Means nothing

Question 10

Trademarks last

Answer 10

10 years (can be renewed)

Question 11

Main considerations for trademarks (3)

Answer 11

• Can mark be graphically represented - digitally or in graph form?
• Does it distinguish owner’s products/ services from those supplied by others?
• NOT descriptive of product

Question 12

Words denoting value or quality…

Answer 12

Cannot be registered

Question 13

Shapes

Answer 13

Can be registered as trademarks

Question 14

Trademark owner must be..

Answer 14

Using registered mark before they can enforce legal rights

Question 15

Remedies for infringement of trademarks

Answer 15

Usually court grants injunction, can also claim damages. In extreme cases, criminal penalties

Question 16

Action against infringement can only be taken

Answer 16

In a country where trademark is registered

Question 17

Almost any written work

Answer 17

Covered by copyright

Question 18

Copyright does NOT exist in

Answer 18

Ideas or concepts

Question 19

If author creates copyright in course of employment

Answer 19

Employer owns copyright

Question 20

Copyright owner has right to

Answer 20

Prevent others from copying/ using copyright item without permission

Question 21

How much needs to be copied?

Answer 21

Substantial part, but qualitative not quantitative

Question 22

Legal presumption that copying has occured

Answer 22

If two items are similar and the alleged infringer had access to original version

Question 23

Remedies for copyright

Answer 23

Injunction to prevent further copying and damages. Owner has choice: can claim damages for loss actually suffered, or sum equal to profit made by infringer. Court can also order delivery up/ destruction of infringing copies

Question 24

Not to possible to patent

Answer 24

Discoveries eg gravity

Question 25

For patent to be granted

Answer 25

Invention must be capable of being produced/ constructed commercially

Question 26

Enabling disclosure

Answer 26

When you publish details of research for a new product, and then try and obtain a patent for it. Can’t, as information is already public knowledge

Question 27

Priority date

Answer 27

Date on which application for patent is filed

Question 28

Last 4 years of life of patent

Answer 28

Other people can use patent, but must pay owner royalties > ‘license of right’

Question 29

Unlike copyright, employee who makes invention leading to patent in course of employment

Answer 29

May be legally entitled to compensation if invention turns out to be very valuable

Question 30

Someone infringes another’s patent if they

Answer 30

Use invention or process set out in grant of patent.

Question 31

Grant based on

Answer 31

What was contained in original patent specification

Question 32

Enforcement in patents

Answer 32

Injunction, and a claim for damages by way of compensation.

Question 33

Even if trademark formally registered/ patent formally granted, Court still has real power

Answer 33

To revoke/ declare invalid

Question 34

Licensing of IP rights/ copyright/ trademark

Answer 34

Grant license to third parties to use IP rights in exchange for payment

Question 35

Confidential information

Answer 35

Protects person’s right to keep sensitive/ confidential information secret and prevent others from mis-using

Question 36

If employee breaches confidentiality agreements

Answer 36

Personally liable for damages

Question 37

Main constituent elements before action for misusing confidential information can be brought: (3)

Answer 37

• Information is objectively confidential
• Assumes that a reasonable person, on being given the information, would know it should be treated as confidential
• Use of information unauthorised

Question 38

Passing off

Answer 38

One person cannot ‘pass off’ business services/ products as those of another (trading off another person’s reputation)

Question 39

Main point of passing off

Answer 39

Person offers goods/ services using similar name, logo, slogan or packaging to confuse/ gull customers into thinking the goods are associated with a different business

Question 40

Right to a passing off claim

Answer 40

Protects reputations. Endures indefinitely, no need to register