Lecture 9 - Intellectual Property Flashcards
Intellectual property =
Fruit of human intellectual and commercial labour. Intangible property. Treated as asset to the business
Trademark =
Allows owner to use distinctive mark exclusively on goods, and prevent others from using same/ similar mark. Last indefinitely. Protects owners name or product
Trademarks must be…
Registered at Trademark Registry
Copyright
Right to stop someone else copying your own original intellectual work/ expression without permission.
Copyright arises…
Automatically, no need for any form of registration.
Lifespan of copyright
Life of author plus 70 years
Patents
Monopoly right over specific invention/ novel or unique method of doing something. Exclusive use of this patent for 20 years.
Patent must be…
Applied for and registered at the Patent Office before valid
TM symbol
Means nothing
Trademarks last
10 years (can be renewed)
Main considerations for trademarks (3)
- 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
Words denoting value or quality…
Cannot be registered
Shapes
Can be registered as trademarks
Trademark owner must be..
Using registered mark before they can enforce legal rights
Remedies for infringement of trademarks
Usually court grants injunction, can also claim damages. In extreme cases, criminal penalties
Action against infringement can only be taken
In a country where trademark is registered
Almost any written work
Covered by copyright
Copyright does NOT exist in
Ideas or concepts
If author creates copyright in course of employment
Employer owns copyright
Copyright owner has right to
Prevent others from copying/ using copyright item without permission
How much needs to be copied?
Substantial part, but qualitative not quantitative
Legal presumption that copying has occured
If two items are similar and the alleged infringer had access to original version
Remedies for copyright
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
Not to possible to patent
Discoveries eg gravity
For patent to be granted
Invention must be capable of being produced/ constructed commercially
Enabling disclosure
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
Priority date
Date on which application for patent is filed
Last 4 years of life of patent
Other people can use patent, but must pay owner royalties > ‘license of right’
Unlike copyright, employee who makes invention leading to patent in course of employment
May be legally entitled to compensation if invention turns out to be very valuable
Someone infringes another’s patent if they
Use invention or process set out in grant of patent.
Grant based on
What was contained in original patent specification
Enforcement in patents
Injunction, and a claim for damages by way of compensation.
Even if trademark formally registered/ patent formally granted, Court still has real power
To revoke/ declare invalid
Licensing of IP rights/ copyright/ trademark
Grant license to third parties to use IP rights in exchange for payment
Confidential information
Protects person’s right to keep sensitive/ confidential information secret and prevent others from mis-using
If employee breaches confidentiality agreements
Personally liable for damages
Main constituent elements before action for misusing confidential information can be brought: (3)
- 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
Passing off
One person cannot ‘pass off’ business services/ products as those of another (trading off another person’s reputation)
Main point of passing off
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
Right to a passing off claim
Protects reputations. Endures indefinitely, no need to register
