Week 11 (Intellectual Property) Flashcards
What is intellectual property and what does it include?
Intellectual property is like owning ideas or creations. Examples include inventions (like a new gadget), artistic works (like a song or painting), and brand names or logos (like a famous company’s logo).
Trademarks, patents, copyrights
What is Passing off with a TRADEMARK
Occurs when one business misrepresents its goods, services, or business in a way that deceives the public into believing that such goods, services or business are those of another person or business.
TYPE OF TORT relating to intellectual property laws. It involves misleading consumers and can lead to legal action against the party responsible for the misrepresentation.
Example; store sells knockoff designer handbags but labels them with the logos of well-known luxury brands, making them seem like authentic products.
What is the 4 criteria of a successful passing off action with TRADEMARKS
- Plantiiffs goods/services have a reputation which constitutes valuable business assets that are WORTH protecting
- Example; BIG MAC is an asset to mcdonalds - Defendant must have misrepresented goods of those of plaintiff
-Example; Someone sells a product same but called “big mic” - Likelihood of confusion to the public is required
-Example; if someone saw the big mic they would confuse it with big mac - Plaintiff must have suffered or likely to suffer from the passing off
-Example; public stops buying Big Macs due to big mics
Can companies in different lines of business have the same name
Yes, they can have the same name (pink panther)
Registered Trademarks what is requires (using sec 2 of trademarks act)
Trademark means a sign or certification mark used to distinguish goods/servies
-could be word, name, letter, design (apple logo, nike)
Once registered, corp will have the exclusive right to use the mark
Usually registration is protected for 10 years can argue for forever
What is the Nature of the Copyright
-Does not need to be registered HAPPENS AUTO
-Intellectual prop found in EXPRESSION of idea (not the idea itself)
Needs to meet orginality:
-independently created by author
-minimal degree of skill to produce
-example (books, musicals, performances)
What are the basic and moral rights of copyright owners
Basic:
1.Right to produce or reporduce work in question
2.Right to perform or deliver work in public
3. Right to publish unpublished work
Copyright owners have the right to say who can use their stuff. They can decide if others can copy, share, or make money from their creations like books, music, or videos.
Moral Rights:
Moral rights are like a special protection for creators. They let creators control how their work is used and make sure they get credit for it.
Who OWNS Copyright and how long is it protected
Copyright belongs initially to the author and they can assign royalties to publishing company
Author can also keep copyright but license a single right to print out their material
If government uses the work of employee then it belongs to government
COPYRIGHT is protected for life of author and 70 years after
What is Infringemnet
Copyright infringement is like stealing someone’s work. It’s when you use someone else’s writing, music, art, or other creations without their permission.
Copyright is not infringed when there is “fair use” what does that mean
Copyright is NOT INFRINGED when there is fair use of work with
-research
-education
-satire parody
-criticism
“Fair use” is determed with purpose, character and amount of work put in the activites above
User-generated reproduction of own legal content for private, non-commercial purposes: This means you can copy your own stuff, like a song or a picture, for yourself as long as you’re not trying to sell it or use it to make money.
Substantial reproduction by educational institutions for instructional purposes: This refers to schools or colleges making copies of things like books or articles for teaching. They can copy a significant amount, but they might need to pay the original owner a little bit for using it.
Nature of Patents/rights and its duration
Only INVENTIONS qualify for patent protection
Do not come into exsitence, using Sec 2 act of patent
Duration is 20 years (invention cannot be duplicated)
Patents have exclusive rights
TO BE PATENTABLE INVENTION MUST BE
-An art, process, machine, manufacture, improvement
-new
-useful
Protection of Public Interest
Sometimes companies buy inventions to keep them from being used against their business, but they don’t actually use the inventions themselves.
Ways patents protect the public:
The scope of what the patent covers.
People can ask to review a patent again if they think it shouldn’t have been granted.
Preventing patents from being abused.
Compulsory licensing means the patent holder might have to share if they’re not using the invention.
Competition laws stop patents from being used to hurt competition.
What are the essential elements of the tort of passing off?
Existence of goodwill: The plaintiff (the party bringing the action) must show that they have established goodwill or reputation associated with their goods or services.
Misrepresentation: The plaintiff needs to prove that the defendant (the party being accused) misrepresented their goods or services in a way that confuses or deceives consumers into thinking they are connected to the plaintiff.
Likelihood of confusion: The misrepresentation by the defendant must be likely to cause confusion or deception among consumers about the origin of the goods or services.
Actual or potential damage: The plaintiff must demonstrate that they have suffered or are likely to suffer damage as a result of the defendant’s misrepresentation, such as loss of sales or harm to reputation.
In relation to copyright, what are “moral rights”?
“Moral rights” (in relation to copyright) are “rights of an author/ creator to prevent his or her work from being “distorted” or “misused” and include: (i) the right to maintain the integrity of the work; (ii) the right to prevent distortion or mutilation of the work; and (iii) the right to prevent the work from being used in association with some product, service, cause or institution (see p. 461 Text for further elaboration).
Richards, a freelance writer, wrote a long article on the devastating effects of a tsunami in Asia and submitted it to the Global Post, a leading newspaper that had published other articles by her. The newspaper agreed to publish her article in its December 2015 print edition.
In early 2016, the Global Post published a number of extracts from what it described as “the best GP articles of 2015” on its website. Included was Richards’s tsunami article. Richards complains that (1) she had never agreed to the publication on the internet, and (2) in editing the article for the website, the newspaper had omitted important details so that the edited version did not properly represent the original work.
Does Richards have an action against the newspaper? Why or why not?
This case raises two principal issues: (i) who owns the copyright in the article; and (ii) were any rights of Richards’ infringed? As a general rule, copyright in a written work belongs to the author. An exception to this rule exists where the author is an employee and the work is written in the ordinary course of employment. In this case, Richards is stated to be a “freelance writer”, not an employee, and she therefore owns the copyright in the article.
Richards clearly consented to her article being published in the newspaper. Did she also consent to it being published on the Global Post’s website? As stated in class, because our new copyright legislation is “technologically neutral”, Richards’ consent to publish her article in written form also includes her “implied consent” to publish it electronically. Thus, Richards’ copyright has not been infringed. However, her “moral rights” have been infringed. By definition, her “moral rights” cannot be assigned to the newspaper and, by editing the article without her permission, the Global Post has compromised the “integrity” of her “literary” work.
The fact that Richards’ article was selected and referred to in the publication as being one of the “best GP articles” of the year, suggests that her reputation has not been harmed (and that it may actually have been enhanced as a result of the publication). Therefore, Richards would only be entitled to “nominal damages”, at best, for the infringement of her moral rights.
What is the duration of a trademark
10 years
What are the rights obtained from the registration of a trademark
exclusive right to use throughout Canada in respect of subject goods or services
may be registered in other countries that adhere to international treaty
what are some registration requirements for a trademark
inherently descriptive
cannot be certain things - name or surname of an individual
cannot be clearly descriptive or misdescriptive of the character or quality of wares or services
what are the remedies for trademark infringement
damages
injunction
anton piller
what is ANTON PILLER
An Anton piller order is like a surprise visit from the law. It lets someone who is going to sue you come into your place without warning so they cannot try to destroy evidence. Based on British case
what are the moral rights for authors under copyright law
- integrity of work
- right to prevent distortion or mutilation of the work
- right to prevent it from being used in association with some product, service, cause, or institution
- right to be associated with work or remain anonymous
what are situations of fair use where copyright is not infringed
research and private study
education
parody and satire
criticism and review
news reporting
what is the duration of a patent
20 years
what is SEC 2 of trademarks act
defines what a trademark is
a mark that is used by a person for the purpose of distinguishing or so as to dinstuingsh its wares or service from that of another wares or services
certification mark - special trademark used to identify goods or services that conform to a certain quality or standard (TRUSTe mark for internet security
distinguishing guise - shaping goods, containers or mode of wrapping (Coca Cola bottle)
what is section 7 of trademarks act
related to common law action of trading off, it prohibits:
making a false or misleading statement tending to discredit business, wares, or services of competitor
directing public attention to ones business in such a way as to cause or likely cause confusion in the business of another
passing off other wares
making, a description that is false in a material respect and likely to mislead public as to character, quality, geographic origin, or mode of production
