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Intellectual property could be defined as distinct creations of people having exclusive rights for recognition by the law. Under the law protecting the intellectual property, owners enjoy exclusive rights granted towards the intangible assets. The term continues to be used under different circumstances, to describe numerous unrelated concepts. The terminology became commonplace in the twentieth century with the invention of statutes regarding copyright and patent law. Different countries’ constitutions contain legislative power for protection of intellectual property. The development of intellectual property rights continued, leading to the formation of World Intellectual Property Organisation (WIPO) in 1967. According to the American Bar Association, (2007) formation of this agency marked the beginning of actual protection of intellectual property by the law.
Intellectual property rights granted by constitutions come in different forms. The most common ones include trademarks, patents, copyrights and industrial design rights. Some jurisdictions, however, also include trade secrets among intellectual property rights. The objective of intellectual property rights lies in protection of noble ideas. Miller et al (2000) implies intellectual property protection significantly encourages innovation. Through protecting other people creations, necessity arises for individuals to create their own trade marks. Making creations similar to protected creations amounts to infringement of intellectual property rights. Owners of these rights instigate legal proceedings in the eventual occurrence of infringement of their rights. This significantly helps prevent the use of protected intellectual property by unauthorised individuals.
Trademarks provide protection for innovations from being used by other persons without the rights. The rights granted by trademarks give powers to instigate litigation. Proprietors could possibly seek legal assistance upon infringement of their rights. The use of trademarks enables companies to create a marketing niche within any industry. Impressive results become imminent when companies have rights to litigate upon infringement of these rights. Protection of company products from counterfeits assists companies in selling genuine products without facing fraudulent competitive practices. Counterfeiting immensely reduces company profits as consumers purchase wrong products. Availability of counterfeit products in the market could be significantly reduced through the establishment of trademarks.
The utilisation of trademarks in business helps consumers identify products associated with particular companies. Company trademarks could be any element ranging from symbol, design, name, logo, phrase, word or combination of several elements. Litigation of trademark rights infringement commonly falls under the passing-off tort. Though this law does not protect the actual trademark, it offers protection to the goodwill of traders. Wadlow (2011) states that, application of this tort comes under circumstances of misrepresentation of a registered trademark by other individual. The use of similar trademark could be litigated under this provision. The trademarks act of 1994 provides protection of trademarks within the United Kingdom. The protection of trademarks comes under statutory laws amended by the United Kingdom parliament.
According to the trademarks act, a trademark should have the capability of being represented graphically, and clearly distinguishing the goods of an individual’s undertakings from another person’s undertakings. The act provides explanations regarding the classifications of trademarks that could pass registration. Emphasis continues to be made on creation of distinctive trademarks independent of existing trademarks. The intellectual property office provides guidelines for the registration of trademarks, and other related intellectual property rights. According to Raysman et al (2006) presentation of a trademark similar to another for registration might not substantiate refusal to registration.
In the case regarding ‘pointymints’, the trademark could easily pass for registration. While the products manufactured by the pointymints appear similar to those of toblerone, the trademarks seem different. The registration process requires presentation of clear difference between the trademarks. Under the situation, the trademark should represent individual goods or services while distinguishing them from the undertakings of other companies. The pointymints trademark appears independent of the toblerone trademark. Violation of trademark rights could imminently lead to refusal for registration. Substantial evidence, however, becomes essential in proving the violation of these exclusive rights. Within the scope of pointymints, there seems to lack any confusing similarity between the trademarks. An example of this situation occurred in the case of Network Automation, Inc. v. Advanced Systems Concepts, Inc., in March 2011. The United States Court of Appeals for the Ninth Circuit found that using competitor’s trademark in internet advertisement did not constitute infringement.
The registration of trademark process allows for a period during which complaints could be launched. During this period, a proprietor of a trademark might challenge registration of another trademark seemingly infringing his/her trademark. The complainant could present evidence indicating the infringement caused by the trademark intended for registration. Upon launching the complaint, the applicant would be sought, and investigations undertaken, to establish the purported infringement. Upon successful challenge of the application, the registration could be refused. The registering office, however, cannot establish the infringement of these rights. Whenever complaints fail to be launched within the two-month period, the office continues, and effectively registers the trademark.
The proprietor of toblerone could instigate a challenge upon the pointymints trademark. Since the significant similarities lie in the products, the basis for the challenge could be the likelihood of confusion. The likelihood of confusion between these trademarks could, however, form a basis for refusal of registration. Similarities between the products could confuse buyers to purchase products from pointymints and not toblerone (Broniarczyk, 2008). Courts would consider numerous trade elements in establishing the presence of consumer confusion. Infringement of trademark rights would occur when consumers purchase goods similar to the ones they intended to purchase. Upon realising that the goods purchased were not intended, the situation could become consumer confusion.
Litigation process under consumer confusion could essentially be instigated by the consumers. The proprietors of toblerone might never realise the occurrence of consumer confusion. Consumers could instigate litigation seeking removal of the trademark ‘pointymints’. According to Andersen (2006) the basis for their case would be confusing similarities of pointymints products to toblerone products. The imminent similarity might mislead consumers into making wrong purchasing decisions. Consumers have the right to seek remedial action for confusion. A complaint launched by consumers could effectively prove the likelihood of confusion concept for the toblerone proprietors to challenge pointymints.
Concerning unregistered trademarks, infringement of intellectual property rights cannot occur since the proprietor lacks exclusive rights. According to Bainbridge (2009) unregistered trademarks do not bear the intellectual property rights granted to registered trademarks. The registration process could essentially be defined as the granting authority for intellectual property rights. Except in the United States of America, unregistered trademarks cannot be infringed. The reasons for this could be the failure by the register for trademarks to recognise any unregistered trademarks, regardless of the period the trademarks have been operating. An infringement case cannot be filed by the proprietors of unregistered trademarks. The law, however, provides exceptional circumstances of seeking remedy for unregistered trademark violations.
Possible legal actions following unregistered trademark violation could be pursued through the common law. Barrett (2008) discusses the various channels that could be followed under such circumstances. The registration of the oxford trademark could essentially fall under this litigation process. Proceedings regarding unregistered trademarks could only commence under the common law. The key elements under discussion would be the passing-off tort and misrepresentation. Having established itself as a leading trademark in the bicycle manufacturing industry, oxford could launch a complaint under the common law to have permission refused for registration of the trademark. The registration process allows challenges to be made under any existing law before registration of a trademark. An example could be presented by the case of Erven Warnink B.V. v. J. Townend & Sons (Hull) Ltd., of 1979. The court ruled in this case that items with names falsely suggesting character and quality could be prevented from trading under that name.
Though unregistered, the trademark could be identified as having existed for a long time. According to Barrett (2008), the proprietors could make the challenge based on unfair business practices. These business practices normally occur on consumers and not manufacturers. Existing laws prohibit unfair business practices. Though it may be increasingly difficult to prove the unfairness of the trademark registration, business law advocates for fair competing business practices. Wadlow (2011), states that the provisions, therefore, criminalise any unfair practices. Challenging the oxford trademark registration might be extremely difficult. This might be supported by the notion that, not all unfair practices become illegal. Since the trademark does not appear in the register for trademarks, the registering office might continue, and register the oxford trademark. Failure by the offended party to launch a challenge, there shall be no ground for refusal of registration.
The smell of desire perfume could easily and effectively pass for registration as trademark owing to the uniqueness of the product. The trademarks act, however, defines a trademark as having the capability of being represented graphically. The registration of smell could fail immensely to meet the specifications of the trademarks act. Within the intellectual property rights, the smell could essentially be granted patent rights. According to Raysman et al (2006) patent rights could be granted based on specificity of the products. Patent rights define patentable products as non-obvious. The description of the smell as “vanilla with a hint of spice” significantly points towards clearly defining an element of a product. This description fundamentally invalidates the application for registration of desire smell as a trademark. Trademark intellectual property rights could only be granted to products with distinctive clarity from existing products.
The registration of the proposed trademark could be refused based on the provisions of section 3b. The section fails to recognise trademarks seemingly devoid of distinctive characteristics. Though the smell of the perfume might be unique, the professional description uses existing elements. The registration of this trademark could be challenged by all companies manufacturing products containing vanilla. Granting trademark rights to desire perfume could jeopardise the use of vanilla in any other products. As a natural product, the smell of vanilla remains the same in all substances containing vanilla. The “Desire” perfume would, therefore, be classified as devoid of distinctive characteristics. Such classification imminently leads to refusal fro registration. Companies manufacturing vanilla products could also challenge the registration of the trademark owing to the similarity in smell with their products.
Trademarks continue to be utilised in providing protection of innovative products and services. Trademarks assist consumers immensely in making decisions regarding products to purchase. According to Middletton, (1999) buyers rely on trademarks in establishing the quality of products they intend to purchase. The granting of trademark rights, therefore, significantly considers the impact on the consumer. The unusual shade of metallic purple used in papers for wrapping mints could, therefore, be registered as a trademark. The colour of the paper forms a distinctive characteristic necessary for qualification to registration. Provided no other companies package mints in the specified colour or paper, the registration could successfully occur. The packaging of the mints provides a unique appearance for the specified products, and distinguishes them from other similar products.
The purple shade could be challenged owing to the extensive utilisation of the colour by mint manufacturers. Should a link be established linking the colour with adding substantial value to the products, the trademark registration could overly be refused. While existing evidence might not point towards such a scenario, a possibility may exist indicating purple colour being associated with mint. Existence of another trademark similar to this one could essentially pose difficulties in the registration of the trademark. This trademark could fall in the category of designs. The specified paper presents a unique packaging design for mints.
Intellectual property rights granted to this paper design might not fall under the category of trademarks. The quality of paper and colour could become industrial designs. Intellectual property rights could, therefore, be granted under industrial designs. Gray and Bouzalas (2001) define industrial designs as configurations pertaining to colour or pattern. They continue to state that industrial designs include patterns used in production of products. The wrapping used for mints fall into this category of intellectual property rights, granted by constitutions. An example of a well known industrial design could be the shape of the Coke bottle. Within the United Kingdom, design rights are granted to both registered and unregistered designs. This significantly allows protection of unregistered designs from future misrepresentation by fraudulent businessmen.
References
American Bar Association. (2007) Intellectual property and antitrust handbook. Chicago: American Bar Association.
Andersen, B. (2006) Intellectual property rights: innovation, governance and the institutional Environment.Cheltenham: Edward Elgar publishing.
Bainbridge, D. (2009) Intellectual Property. London: Pearson Longman.
Barrett, M. (2008) Intellectual Property. New York: Aspen publishers.
Broniarczyk, S. M. (2008) Product Assortment and Consumer Psychology. London: Routledge.
Gray,W. & Bouzalas, E. (2001) Industrial Design Rights: An International Perspective. The hague: Kluwer Law International and International Bar Association
Middletton, N. (1999) Intellectual property rights: a battleground for trade and biodiversity? Gland: International Union for Conservation of Nature and Natural Resources.
Miller, A. Raphael and Michael, H. Davis. (2000) Intellectual Property: Patents, Trademarks, and Copyright. 3rd Ed. New York: West/Wadsworth.
Raysman, R., Pisacreta, Edward A. and Adler, Kenneth A. (2006). Intellectual Property Licensing: Forms and Analysis. New York: Law Journal Press.
Wadlow, C. (2011) The Law of Passing-Off: Unfair Competition by Misrepresentation. London: Sweet & Maxwell.
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