Trademark Law and the Claims for Patent Protection - Essay Example

Lecturer Introduction A trademark represents a unique representation, sign or color even design; which identifies and shows the products (goods and / or services) of a given organization, individual or any other legal entity. Trademark shows the differences between products of one legal entity from products of another different legal entity. Trademarks are normally indicated in different places and areas, for example package, receipts, buildings vouchers or even official documents1. One example of a trademark is “Nike: which shows shoe product manufactured by Nike company, and differentiates its unique products from products of other companies like Adidas. Second example is Coca-Cola trademark which differentiates products of the Coca-Cola Company from products of competing companies like Pepsi. Trademarks allow for easy identification of products, and sources of products, by consumers and other stakeholders. By making products easier to identify; trademarks ensure producers or manufacturers of products are responsible and accountable for the quality and other features of their products. Modern trademark legislations were enacted during the end of the 19th Century. The first trademark system in the world was applied in France. Amongst the European countries, trade mark laws are governed by the national laws for each country which enforce it along side the court civil law suits and international treaties. This makes it much easier for the individual investors and corporate to acquire their own unique form of trade mark to use for their own products or businesses2. Therefore, in order to produce the required uniqueness, each business should be in a position of producing a special trade mark design different from other people or organizations. Meaning, they should be keen on the way they use graphical representations in their respective trade marks. This should be of much concern because the law guarantees everyone an opportunity of identifying and using letters, words, personal names, colors and designs in their respective trade marks. However, these should be able to distinguish the commodities-goods or services produced by each business and also allow the public and the government to easily grasp knowledge about the type of business being protected. Patent Protection The term patent simply refers to a set of rights which are exclusively granted to an assignee or inventor by the government3. This kind of intellectual property right is not permanent, but is given for a limited period of time, usually 20 years, upon a successful disclosure of the invention made. Such inventions may include a product, process or a solution to some kind of technical problem that needs to be addressed by such creative inventions. In any society, patent plays a very crucial role. Thus, it should be taken much seriously because it has higher chances of promoting the success of business activities in the country4. Before a right is given, one has to meet the set standards. This can be done in reference to Young v. Rosenthal and Company in which the court ruled that there should be adequate, clear and complete disclosure of the invention that needs to be granted the patent rights. Once individual inventors are given intellectual protections, they will have to make a good use of their inventions to benefit the society as they also reap a lot of advantages from it5. All these are possible because the law gives them adequate protection from any unnecessary infringement6. It will ease their business operations since it enables them to exclude others from producing, selling, importing or using the invention which has been patented for the entire period of the patent. As a matter of fact, patent laws are often territorial by nature. Meaning, each and every sovereign country has its own set of patent laws used to govern the patent rights of its people. This is actually necessary since it will help it in offering the necessary protection for the inventors whose property and intellectual rights might be infringed7. Therefore, a part from having such laws, adequate measures should be taken to enforce them. Hence, it implies that each country needs to have its intellectual property laws governing patent rights. They are sovereign nations that have full authority and mandate to formulate laws to protect the inventions of their own citizens8. A part from relying on the national laws to govern patent rights, countries are free to be party to international treaties which provide laws stipulating the protection of individual property rights in all the involved countries. For instance, amongst the European countries, there is the European Patent Organization (EPOrg) which provides patent laws governing the people from all the countries which constitute their membership9. These are trends which have been emerging as a result of the increasing globalization which has made it much easier for the international community especially those who come from the same geographical region and having similar interests, to constitute the same laws to govern all the m in a similar manner without any challenge10. The way in which Courts have Elaborated on the Scope, Rationale and Function of the Graphic Representation Requirement in Trade Mark Law and the Claims for Patent Protection Even if patent in Europe is granted by the European Patent Office (EPO) under the umbrella of the European Patent Convention (EPC), the enforcement of patent rights still remains with each country11. According to EPC Article 64(3), "any infringement of a European patent shall be dealt with by national law." This gives each and every sovereign nation an authority to enforce the intellectual property rights within their jurisdiction. Hence, in case of any infringement, it should be the responsibility of the government to look for measures of resolving it and give a fair treatment to the wrangling parties12. This is what actually happens in the United Kingdom (UK) which is also a member of the EPOrg. Despite complying with the principles of EPC, as a nation, it has a responsibility to safeguard and protect the patent rights of its citizens from being deliberately infringed. With all these powers, the courts have been very active in giving out guidelines on the scope of the property rights. For instance, in Mentor Corp v. Holiste (1993), the court gave a clear direction on how an invention which has been patented needs to be especially after attaining the right. The judges ruled that once an invention has been made, no further inventions or can be made there after. This might make it invalid and incase its chances of infringing on others’ intellectual property rights. As a matter of fact, one of the most prominent ways of enforcing patent rights in the UK and the rest of the EPOrg countries is through civil laws suits13. Since the constitution guarantees people’s property rights, it is the court which arbitrates in case of any dispute. Whenever any inventor feels that their intellectual rights have been fringed, they rush to the court for arbitration. This definitely demonstrates why the courts play a very significant role in determining the scope, rationale and function of patent rights in the country14. For example, in the Fence-Post v. Sign-Post Claiming, the court gave further clarifications on the scope of rights of inventors and how they can be infringed upon. Based on the antagonism which arose between these inventors, the court ruled that an infringement can be made if the there is an immaterial variation in the claimed invention made. Hence, in order to eliminate such challenges, there is need for the patentee to clam more monopoly beyond the limit which is granted to them. In UK, the courts have a very important role to play as far as these trade marks and patent laws are concerned. As already highlighted, UK is a member of the European Union which have come together under one umbrella body to stipulate laws governing intellectual rights in the region15. However, since it is the mandate for each country to make decisions on how to enforce it, the courts have a lot of contributions to make. Hence, it means that they have a mandate to perform a lot of functions in order to ensure that these laws are effectively implemented in the country for the benefit of inventors and investors. This is necessary for healthy business activities in the country. It can give rulings on any case involving the property rights in the country. In the Graver Tank & Manufacturing Company v. Linde Air Products Company (1950), the court provided further rationale and scope for the protection of patent rights. According to this ruling, there should be no doctrine of equivalence as it might increase replacement and omissions which results into the infringe rights of protected property rights. The courts can do this by giving direction and a clear guideline on what exactly should be done in order to guide people on how to design graphic representations used in various trade marks to represent their ideologies16. Therefore, it means that before any logo for a corporate or individual business is designed, it should apply to certain standards. This is the only way through which it can be accepted to be used in the country to identify the business. It must be having its own uniqueness that distinguishes it from others. Graphical representations should be done in line with the ruling made during the Lux Traffic Control System v. Pike Signals Limited in which the issue of novelty is illustrated. A part from ensuring uniqueness in the graphic representations in the trade marks, the courts also play a very significant role in protecting the rights of individuals from being infringed by others17. As a matter of fact, several people might be interested in violating the intellectual rights of others. This might be a common desire in the country because of the competitive nature of business activities. After identifying a trade mark for a certain commodity, it may attract others. Hence, in this case, they might also reproduce the same thing to help them in marketing their own product. This is the rationale why the courts have been instituted as one of the most significant bodies as far as the protection of intellectual rights is concerned. Hence, it is the responsibility of the UK laws to help in protecting the property rights for the traders in the country. Once they a certain trade mark has been registered and approved by the relevant authority, the owner is given a mandate and rights to use it without any unnecessary interference from anyone else. In case this happens, the trader is free to take a legal action against anyone who is involved. Thus, in this situation, the court helps in resolving any conflict which might arise. Once a trade mark is associated with one given trader, it should not be used by another one. Otherwise, it will be an infringement which is an illegal activity and not tolerated in the country. This means that the courts are helping in enforcing the property laws. If there is any infringement in the use of trade mark, it is the court of law that is used to resolve it. Therefore, whenever a person feels that their trade marks are infringed on, they are free to file a law suit and seek for the intervention of the court. Thus, when such cases are brought before the court of law, it is heard and decided upon by the judges. Hence, when such a thing happens, the dispute is resolved. Once the property right was infringed, the trader has rights to seek to be compensated for the damages caused. At the same time, the infringer is punished by the law either by being fined or compelled to pay for the damages caused to the owner of the trade mark whose rights had been infringed. Such a scenario does not only apply to the trade marks. It also extends to the patent rights. In UK, it is the responsibility of the government to enforce patent laws. Thus, it should be actively involved in ensuring that the patent rights for individual traders are protected at all times. However, as already highlighted, the courts are used as one of the platforms through which these laws are enforced. Hence, as legal institutions, the courts are charged with the responsibility of making important decisions which can be relied upon to provide guidelines to every inventor. First, the courts can make decisions which can be relied upon by everyone to enlighten the people on how a property can qualify to attain patent rights. Not every invention can qualify to be given patent rights. Even if patent rights are not reserved for any specific person, it can only be granted to certain inventions which meet the set standards18. For instance, it is a legal requirement that an invention that needs to be patented should be made by the person who is seeking for the right. Besides, the inventor should be able to explain to the government why they need to seek a right for such invention. In other words, they should clearly demonstrate that it is their own and it will have important contributions to make to the rest of the society. Once such qualifications are not met, it might not be possible for the inventor to acquire a patent right. Therefore, such rules are spelt out in the court of law as they are allowed to do this for the sake of enlightening the entire society regarding these laws. At the same time, just like in the case of trade marks, the UK courts also play a significant role in mediating in case of any legal tussle involving patent rights. In fact, this is one of the ways through which the courts can make their contributions towards the enforcement of the patent laws in the country. hence, in case there is a dispute involving some parties, the matter is taken to the court of law in which investigations are conducted before the case is decided to determine if the patent right was actually violated19. This is a very important action since it helps in safeguarding individual inventor’s rights and protecting their inventions from being interfered with by other people who might be having ill motives. This has been done on several occasions in which the courts have arbitrated in a lot of issues involving several inventors whose property rights have been violated by others. For instance, in Bristol-Myers Squibb Company v. Ben Venue Labs Inc and Actaris UK Limited v. Merck and Company Inc in which there was a conflict surrounding the use of dosage and cancer drugs amongst these companies. Further clarifications on these rights were got after the ruling of Chiron Corp v. Murex Diagnostic Limited where the judges ruled that these intellectual property rights are not restricted to profit making organizations, but also extend to the non-profit making organizations as well. This created clarity on these laws. In conclusion, intellectual property rights are crucial for the success of any business and prosperity for the inventors in the country. As provided by the EPOrg, everyone’s property right should always be protected by the law. However, although the EU countries have harmonized their intellectual rights, there is a provision that each country should be concerned about the enforcement of these laws within their own territorial borders. Therefore, in order to effectively do this, individual nations have resorted to the courts as one of the most significant contributions towards this. For this reason, the UK courts have effectively discharged this role by giving a clear elaboration regarding the scope functions and rationale for the graphic representation requirements in trademarks and patent rights20. This has made it much easier for the general public to be privy with these laws as they seek to protect the intellectual property rights of individuals from being infringed. Bibliography Alchian, Armen A. "Property Rights". In David R. Henderson. Concise Encyclopedia of Economics (2nd Ed.). Indianapolis: Library of Economics and Liberty, 2004. Arai, Hisamitsu. "Intellectual Property Policies for the Twenty-First Century: The Japanese Experience in Wealth Creation", WIPO Publication Number 834 (E). 2000. Barzel, Yoram. "Measurement Costs and the Organization of Markets". Journal of Law and Economics 25 (1): 2000. 27–48. Bettig, R. V. Critical Perspectives on the History and Philosophy of Copyright. In R. V. 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