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Intellectual Property Law (Trademark - sign or mark used by a trader in…
Intellectual Property Law
IP - Refers to work created from intellectual effort, a creation of the human mind IPR- legal rights conferred, on the IP owner, protects the IP from being copied, sold in any way used by others without permission, payment of fees to owner
Copyright - protects the expression of ideas; in order to have copyright to a piece of work the creator has to do certain acts in relation to the work they have done/ created - publish/reproduce/adapt
not necessary to use symbol does not mean acquired or giving up of CR
However; in case you decide to sue someone for copyright infringement; stops them from claiming they dont know material was CR protected
statutes and international conventions 1. Copyright Act 2. Berne Convention for the protection of Literary and Artistic Work 3. The agreement on TRIPS
To be accorded copyright - expression must be original; must not be copied or 'slavish copies'
If substantial changes are made so much that the copy is like a different work, copyright may subsist in the new work
Acquiring Copyright
There is no registration procedure; CR is automatically conferred on the author as soon as an original work/subject matter is created/ tangible
Author - first owner; commissioned work by employee
2 condition for copyright
Classical Works = Literary Works. Dramatic Works. Musical Works. Artistic works :warning:Case Law: Kenrick v Lawrence [1980] signboard
Entrepreneurial Rights - people who turned classical works intp movies and sounds and broadcasts the works (sound recordings,TV)
Live Performace
2) works must have some connect between the creator and Singapore; unpublished work - author must be Singaporean or PR; published - author must be a S'porean or PR when work was published, must have been first produce in SG
Rights of copyright owner
Literary, Dramatic, Musical
Reproduce in Material form, Publish the work, Perform the work in public, Broadcast work, Include work in cable program, make adaptation
Artistic works
same but no - right to perform in public - Section 26 (1)(B), can covert 2D-3D vise versa
Duration of CR protection: Classical works - 70 years when work is revealed
Entrepreneurial rights: 70 years from the expiration of calendar year in which the recording or film is first published
Tv Broadcast/ radio - 50 years
Published edition of work: 25 years
Copyright infringement
Primary
when a person does and acts covered by the exclusive rights given to the copyright owner
Secondary
when a person sells or hires out for the purpose of trade, articles which that person know or ought to know are infringing articles
Remedies for copyright
Damages or account of profits
Damages- refers to the monetary compensation to the CR owner for the losses suffered
Account of Profits- take away from the infringer any profit they have made from the infringement and give it to the CR owner
Injunction
An order or court to prevent the offender from continuing with or commencing an infringing act; P must show that damages are not adequate
Order for Delivery up to plaintiff
An order or court to the infringer to surrender all infringing items to the CR owner so that infringing item can be destroyed
Defences
These acts are intended to strike a fair balance between the interest of copyright owners and the public interest
They include act for the purposes of study, research, criticism, review, reporting current events ; to constitute fair dealing for research and studies, not more than one article in a periodical or a reasonable proportion of a work may be taken
Section 35 of CR Act; limited copying of protected works for certain purposes are considered 'fair dealing' and not infringement
Purposes Include: Criticism
Reporting current events
Research and study
Jucidial process
Giving legal advice
Backing up a computer program
Education
Copying cannot exceed: Only 1 article of a periodical only one chapter where work is divided into chapters
OR: not more than 10% of the work when in printed form; not 105% in bytes or number of words in electronic form
Trademark - sign or mark used by a trader in the course of their business or trade to distinguish their goods from those of other trader
Section 2 of Trademark Act requires sign to be capable of being represented graphically and to be capable of distinguishing the trademark proprietor's goods and services
Sign may be: 3D, A moving image, triangular shaped
Non Traditional trade marks include: Sound, Smell, Taste
Reason to use TM 1. Production differentiation 2.Brand recognition 3. To promote brand loyalty 4. For advertising or public perception 5. Trademark have become a valuable form of IP signifying quality and goodwill
Registration of TM: At IPOS; not compulsory, can rely on CL action in 'passing off'
register a use of 10 years ; have the rights to: use the mark, license the mark, authorise others to use the TM by assigning or selling rights to them, take infringement proceedings in the relation to the goods or services for which the TM is registered
Must be distinctive and capable of distinguishing from other similar G&S
TM infringement
a sign identical to registered TM or identical goods & services; Identical trademark for similar G&S; similar TM on identical or similar G&S
Exceptions: honest concurrent
Remedies 1. Injunction 2. Damages or an account of profits 3. an order to remove the infringing sign 4. an order to deliver up the infringing copies
Passing off : the reputation and goodwill of a trader or manufacturer
sometimes other manufacturer may try to 'cash in' on the reputation of another trader or manufacturer - The trader will pass of his goods for those of a well known trader or manufacturer ; market in the way consumer will think its from the well known
The elements of passing off
Business goodwill in SG attached to the goods/ services
Misinterpretation leading to confusion
Case Law: Reckitt & Colman Ltd v Borden Inc [1990] Lemon Juice
Misinterpretation is made in the course of trade to customers or to ultimate customers
Case Law: Wombles Ltd v Wombles Skips Ltd [1977] Trash cartoon vs bin
Damage
must prove that he suffered a damage or likely to; have to prove from sales figure and all
Remedies: Damages
Confidential Information
Law of confidence covers obligation not to reveal information which the public does not have access to: Trade secrets, government secrets, personal information, artistic and literary information
Case Law: Prince Albert v Strenger [1849]
on its own - not IP, but has been used by lawyers to offer complete protection - CR protects an expression but CI protect the idea; patent law protect patent but CI protect their secret info
Elements of Breach of Confidence
Quality of confidence
information considered to have QOC if the release of such information would be damaging to plaintiff ; or advantages to P competitorrs
Information received in a relationship of confidence
Must have been an element of trust when the discloser gave the information to recipient. Purpose and nature must also be considered
Unauthorised use of information
Remedies
Injuction
Damages
Account of profits