Intellectual Property Law
What is Intellectual Property?
Defined by the World Intellectual Property Organization (WIPO) as; Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
Many types of Intellectual Property rights can be listed under Copyright, Patents, Trademarks, Industrial Designs and Geographical Indications.
Why should we protect Intellectual Property?
Intellectual Property Rights are not any different than your other rights, they include but are not limited to copyright, trademarks, design, media and unfair competition. If you have written a book that took four years of research and your own time and money, and someone copied your book or part of it (plagiarism); that would constitute an act of theft. It is the same when you work hard for a trademark for tens of years and create a huge base of clients and a reputation, then another company uses your trademark as if it were their trademark (infringement) or use the likeness of the trademark to market their products (passing off), this act will not be any different than someone who stole something tangible. Intellectual Property is a creation of the mind and costs its creator money, it may be millions or even billions of dollars in some cases, such as for inventions and movie industries.
Focusing on trademarks. What is a trademark?
Trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.
We have seen some logos and signs accompanied with Trademark notices “TM”. Does it mean that the logo or sign is registered and protected?
There are few notices that may cause confusion to the public. Here are some common expressions and notices of protection:
Copyright protection arises automatically whenever a qualifying work is created. However, in order to gain international recognition and reciprocity of that protection under the Universal Copyright Convention 1971, this symbol should appear on the work, together with the name of the author and the date when the work was first made publicly available.
Intellectual property producers sometimes attach this symbol to signs, names or logos in an attempt to infer that these are trademarks. Often, this happens when trademark protection has been refused, is unlikely to be granted or the producer does not want to go through the time and expense of registering his mark (in Europe, this symbol has no legal effect whatsoever).
This symbol indicates that a trademark is registered. Only formally registered marks are entitled to appear with this symbol.
This symbol puts others on notice that rights of producers of phonograms or performers are being claimed under the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961. This symbol should appear on the work, together with the name of the author and the date when the work was first made publicly available.
When we hear the word “Trademark” we think about words. What type of designs other than words can we register as trademarks?
Trademark is defined as; any sign capable of being represented graphically which is capable of distinguishing goods or services of one’s undertakings from those of other’s undertakings.
Therefore, any sign being represented graphically and which is capable of distinguishing the goods or services may be registered as trademarks if it does not violate any grounds of refusal.
Numbers can be registered (1010 is registered), personal names (in signature form – Marilyn Monroe), the shape of packaging (Coca-Cola bottle), gestures (a man tapping a pocket of an article of clothing worn below the waist), colours (purple in special shade by pantone no. and/or code), sounds (by giving musical notes or dog barking by giving sound waves and written letters), smells (methyl cinnamate ‘balsamically fruity with a slight of cinnamon’ by giving the chemical formula as C6H5-CH=CHCOOCH3).
However, in most countries, those types are still controversial. The same goes for new methods and designs, for example, a pharmaceutical company tried to register an artificial strawberry flavour for use in pharmaceutical products but it was refused by the court as the consumers were more likely to see the taste as a method to disguise the unpleasant flavour of medicine rather than a trademark.
What other types of trademarks might be considered controversial?
New technologies and media (including social media) have a high impact on trademarks. Most of the controversial issues in trademarks nowadays concern personality merchandising (that may refer to real person, cartoon character or a fictional character played by a real person like Harry Potter). The personality merchandising is the use of the true identity of an individual in the marketing or advertising of goods and services. If Elvis Presley’s face was registered as a trademark for guitars then other manufacturers cannot use the face for guitars. The same goes for names and signatures (Marilyn Monroe’s signature is registered in connection with toiletries).
Some trademark’s issues have arisen in connection with Domain Names (website address). Few domain names succeeded in registering as trademarks but they had to be accompanied with added materials like www.bags123.com and www.bigsave.com where you can clearly see the trademark with the added material on the first page of the website.
Domain names consist of the part that is registered as trademarks for instance ZARA in zara.com while the other part is Top Level Domain TLD (.com, .net and .org) are generic top level domains, gTLDs, that were the main till 2000. Intern Corporation for Assigned Names and Numbers (ICANN) approved new gTLDs for instance .museum, .biz, .travel. Moreover, there are the Country Code Top Level Domain (ccTLDs) which include .bh, .uk. and more recently a .eu domain.
While the gTLDs are open to public (any business or individual can make an application to register a domain name using those gTLDs) .com, .net or .org, the newer or sponsored gTLDs each have a number of rules attached to registration. For example .biz is used for business or commercial purposes.
Most of the conflicts have arisen when an individual or small business registered a domain name that is the same or similar to a well known or famous company’s trademark.
Metatags or Metadata tags (words, tags or labels to describe the contents of an item used by search engines to index internet content; website, digital images, books). A new issue caused by the rapid rise in social media is the registration of hashtags (a type of label or metadata tag used on social networks and micro blogging services to find related contents accompanied by the symbol #). People are using and creating hashtags daily and registering a hashtag may not prevent others from using it.
Hence, metatags and hashtags’ issues are the most recent and controversial in trademarks.
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