IP LONG TERM Course WORK PDF

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IP LONG TERM Course WORK...

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MOD CODE: LACM14 MOD TITLE: INTERNATIONAL INTELLECTUAL PROPERTY LAW COURSEWORK: SEMESTER 1 20/21 STUDENT NUMBER: 2021237 WORD COUNT: 1718

INTRODUCTION:

Intellectual properties are creations of the mind. The manifestation of a creator’s idea, which probably took months to manifest into a tangible, perceivable form. Intellectual property law is the legal rules of a particular state regulating the works of authors and inventions of inventors. The ultimate motive of the legislators of this law is to incite the creators into creating more works that is of great benefit to the general public by safeguarding their hard work. In addition to these incentives, this law also includes the rights afforded to creators which will enable them to profit greatly from their works for years to come. Amongst these are right to reproduce, distribute, sell etc. This is the basic argument of Intellectual property law. Categorically, the principle that “a man is worthy of his wages” is a similar rationale of Intellectual Property Rights (I.P rights)

I.P rights, though numerous, are limited in applicability. It is only applicable within the jurisdiction that grants it. This is referred to as the territoriality of I.P rights. Amongst others, the purpose of territoriality permits states to tailor their national intellectual property laws to suit their level of technology and economic development.1 It would be unconscionable to think that a country 40 years would possess detailed and wholesome Intellectual property laws that could be applicable to a country of 200 years of sovereignty and development. Hence it is only proper that a state is governed by its own regulations, which obviously suits the situations there.

If the laws affecting Trademarks were made international, it won’t be a surprise that huge wellestablished companies may overshadow small start up business. Competition wouldn’t be balance. There are only so many names that a company would want to use for several products it produces 1 Territoriality in Intellectual property Law: Examining the Tension between securing societal Goals and Treating Intellectual Property as an Investment Asset Emmanuel KolaWole Oke 2018

but there are high chances that a similar name exists in another part of the world. So, it is quite favorable that Intellectual property law is territorial.

On the other side as well, intellectual property works may also benefit people in other countries and there has to be a way to protect it. An invention developed in South Africa may be of benefit to industries in Germany. Books written by an author in France may want to be translated and used in Russia. This was obviously a foreseeable occurrence in the emergence of IP rights.

To tackle this situation, interested countries began to enter into bilateral and multilateral agreements.

“This process eventually led to the emergence of two multilateral treaties on intellectual property towards the end of the nineteenth century i.e., the Paris Convention for the Protection of Industrial Property (Paris Convention) of 1883, and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) of 1886.” 2

Copyright Copyright consist of Literary, musical, artistic, cinematographic, sound recording and broadcast works and each sovereign has a legislation that safeguard them for some number of years. In the United States for example, the Copyright Act of 1976 protects copyright works made only in the United states. The United States has The Copyright, Designs and Patents Acts of 1988. An artist’s work for example, under the Sonny Bono Copyright Extension Act 1998 is protected for the entire lifetime of the artist plus 70 years afterwards.

The first International regulation that would afford protection to copyrighted works outside the country of creation is the Berne Convention. It was the first law that asserted that copyright subsist in a work the moment it Is in a fixed form. It was first adopted in Switzerland on the 9 th of September 1886 to protect literary and artistic works of author’s that are citizens in the member states. It was only made up of a few countries like Switzerland, Belgium, Tunisia, UK, Liberia, France, Germany etc. Today, there are over 179 signatories o the convention.

2 Ibid.

Member states, after signing the convention, are urged to domesticate the rules in the convention and abide by the basic principles of the berne convention. They are:

i)

CONCEPT OF NATIONAL TREATMENT: I.E. FOREIGN WORKS SHOULD BE GIVEN THE SAME PROTECTION AS LOCAL/NATIONAL WORKS.

ii)

AUTOMATIC PROTECTION: PROTECTION IS AUTOMATIC.

iii)

INDEPENDENCE OF PROTECTION: PROTECTION IS INDEPENDENT OF THE EXISTENCE OF PROTECTION IN THE COUNTRY OF ORIGIN.

In practice, when you create any artistic or literary work in which much work and effort has been put into, it is already protected without need of registration. Although most huge copyright works like Movies, Art and Design works, Books etc are registered by the creators in order to inform potential infringers. A Mark (©) is indicated on any visible part of work. If the author or creators of that work is a citizen of a country which is a member of the berne convention, then the work has international protection only with states that are party to the convention.

This international protection has incited creators to create plethora of works because of the benefit it has for the authors and the public. An interesting book may be transformed into a movie to be shown in various countries in different languages. This in turn metamorphoses into economic value to the author and entertainment to the international public.

Trademark Trademark is an intellectual property that is used only for business situations, hence the name “trade” in “trademark”. It identifies the source of a particular product while on the same breadth, indicative of the quality which consequently helps consumer make the best decision, with regards to price and quality, when making a purchase.

In most jurisdictions, unlike copyright works, a trademark needs to be registered in order to be recognized and protected. After a search have been conducted to detect the availability of the tradename, an Application stipulating the name and logo of the trademark is filed with trademark office (In the United States, the United States Patent and Trademark Office [USPTO] is responsible for that). Fees are paid and a certificate is obtained after a few months. This Is an online process in many countries anyway.

This registration only protects the trademark owner in the country of registration. However, if someone wants to extend their protection beyond their country then the (“Madrid Agreement 1891) and “Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989)” would be ideal the ideal way to go. This system of registration is easy and straightforward; however, registration needs to be done in your country first;

On the World Intellectual Property Organization website, procedure has been laid down: -

The already registered mark needs to be submitted to the WIPO office (Headquarters is in Geneva, it has several branches across different countries) through your local trademark registration office.

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An examination is made by WIPO to see if it is similar to any marks in their register obviously and also to see if it complies with their criteria as well. This is a standard procedure for a local trademark registration as well.

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Once the WIPO office has approved your mark it will be send to the IP offices in the countries where you want your mark to be protected. There are currently more than 100 countries that are members of the Madrid agreement.

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Once these Offices have approved your mark, then your trademark is registered.

Companies like Apple Computers, Samsung Electronics, Amazon have their trademark registered in many countries going through this process. It protects their trademark name and identity and they are also able to enforce them against foreign infringers who try to pass off their goods and mislead the general public.

Patent: A Patent is a new invention or method that has never been invented before or supplements a new way of doing something old. Anything of that nature can suffice as invention as long as they are new, non-obvious to anyone in that field relating to the invention and the invention is of industrial use and not just domestic use.

Similar to trademarks and unlike a copyright work, a patent will have to be registered because it can be granted protection. Once its protected, the inventor has monopoly over the work. In other words, he has the right to prevent other people from making, importing, selling or using the product etc.

All these protections are in exchange for the inventor revealing the details and procedure of his invention to the government. The secrets of the invention are out in the open but protected at the same time. Unlike trade secrets, where the information is kept secret because there is no protection from the government, hence it is up to the owner to take extra efforts in protecting it. The procedure for registration is quite straightforward. An application consisting of details, images, procedures of your invention(s) is filed with the paten office. In United Kingdom, the patent office is the Intellectual Property Office while in the United States it is the USPTO. When the application is filed, it will be checked if it conforms and complies with a standard patent requirement i.e., Novelty, Non-Obviousness and Utility. It takes a few months before it is granted, it depends on the jurisdiction. The date when the application was filed gives you priority over others who may want to file similar works.

The Patent Cooperation Treaty which was adopted in 1970 makes it possible for a patentee to secure protection in other countries at the same time. There is over 150+ member states that are signatories to the PCT.

Similar to the Madrid protocol for registering trademarks, a patent application is also filed with a “receiving office” of the PCT, sometimes the office might be in the applicant’s country which makes it easier. After the filing of application, a rigorous international search is conducted to verify the availability of the patent in the countries the patentee is seeking protection. If there isn’t any available patent then a publication is made. It is important to note that it is the national offices of the various countries that grant protection and not PCT. The PCT is merely agency that helps make things easier. In the absence of the PCT, a patentee who needs a universal protection will have to go to each country individual seeking protection....