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Australian Marketing and Advertising Law - Essay Example

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What Happens When Trade Secret Protection Succeeds and When It Fails? The Consequences for Marketers As Peter Drucker postulated, " because its purpose is to create a customer, business has two and only two functions: marketing and innovation. Marketing and innovation produce results, all the rest are costs" (Kalanje)…
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Australian Marketing and Advertising Law
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Download file to see previous pages At times, however, the innovation might be jeopardized because of marketing. For instance, the most popular brand name Coca-Cola was subject to serious criticism from public and competitors when it was found to have traces of coca leaves that are dangerous to health. The Coca-Cola Company’s lawyers contested the claim and argued that cola is a special herb that improves health and the concentration of coca leaves in the beverage is not harmful for health. At this point, the competitors argued that the brand name Coca-Cola is deceptive in its nature as it does not really include anything that its name suggests (Solar Navigator). The marketers have to be aware of the importance of trademark laws to ensure that they do not violate any of these laws. Likewise, the Coca-Cola formula is a secretive recipe that is unknown to the world though it exists almost 100 years. The recipe is protected under Trade Secrets law. For marketers, it is important to understand the intellectual property rights associated with the innovation of a company. The intellectual property rights comprise of trademarks, copyrights, patents, trade secrets, etc. These rights are categorized according to their scope, subject matter that is protected, disclosure conditions for the grant of protection and duration of applicability of these rights. For instance, a patent is granted for innovations that are novel, involves an inventive step and has industrial application. Such a patent is to be valid for a period of 20 years and is granted upon the mandatory condition according to which the inventor completely discloses the invention to the public. Likewise, the copyright is granted for literary, artistic, cinematographic and record works for 100 years minimum. The trademark protects a mark, brand name, company name, logo, smell and sound that distinguish one product from the other. Its duration does not exceed 10 years and is renewable for 5 years if the business is interested in protecting the mark. The trade secrets is a protection for the subject matters that are not covered by any of the intellectual property rights, require unlimited protection or are of such a nature that a disclosure to the public might result in substantial loss for the owner. The trade secrets are a special protection that is recognized by the World Trade Organization’s Trade Related Intellectual Property Rights (TRIPS) Agreement. It has not been defined in a definite manner. The trade secrets are those secrets which attach considerable value to its owner, are of benefit to the competitors and can literally tarnish the image of the owner. They have a lifetime of protection unless not disclosed to public or stolen. The trade secret that is once leaked loses its secrecy. However, the owner of the trade secret can take action against such disclosure or theft if it is possible to prove that the trade secret was carefully locked in a secretive place, substantial measures were taken to keep the trade secret, the employees were not aware of the secret information, the top level employees, financial advisors, consultants, and any third parties, who were directly or indirectly involved with the trade secret, signed the Non-Disclosure Agreements (NDA). The court upon sufficient proof of the measures and value attached to the trade secret can order injunction that bars the thieves or the violators of NDAs from ...Download file to see next pagesRead More
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