The Issue of Intellectual Property Law - Assignment Example

Statement of fact Marina and Leona were friends at college who had often discussed about the idea of developing a device which would be able to track the bus routes and traffic. The device would facilitate the commuters in anticipating the option to board the best transport for their destination and thereby greatly save time. Eighteen months after leaving college, Marina formed her company and developed the device for London bus service. The device was called ‘The Bus weasel’ and the marketing slogan was ‘weasel thru’ the rush hour’. She registered the device as ‘Bus Weasel’ and marketing slogan and phrase ‘rush hour’. The logo, depicted by rainbow arcing up and through a red ring and emerging on the other side was also registered. Nine months later, Leona also developed such device for London Underground. The device worked on the same pattern as that of ‘Bus weasel’ using the same computer code which was developed by Marina during the college days. Leona called it ‘the Tube ferret’ and used the slogan, ‘ferreting thru’ the London rush’. Leona registered her logo which looked the same as that of Bus Weasel except that the rainbow was inverted! Six months later, Derek Hatherway wrote a book, ‘Rush Hour Weasel’ that had literally produced many shortcuts and travel tips used by ‘Bus Weasel’ and ‘Tube ferret’. Recently, a company was established to market a device called ‘the Metro Rat’. This device performed same work as that of Bus Weasel and Tube ferret. The device was initially planned for Paris and New York but later all major cities of the world are to be covered. Issue The major legal issue in the above cases is that of infringement of intellectual property law. It needs to be established whether Leona had violated copyright of Marina by using her computer software in her device and whether it can be construed that she has also infringed on the Marina’s trademark by using almost similar logo. Whether Derek Hatherway can be sued under copyright laws for his book that has extensively used the ideas of Marina and Leona without acknowledging the same? It also needs to be clarified and established if the new company would be marketing ‘Metro Rat’, a device that performs similar functions as the device produced by Marina and Leona has violated the copyrights of Marina and Leona. Rule of law Intellectual property law can broadly be defined as the rights of the persons for his creative output in terms of academic writing, research, new product development, idea, design or any such artistic expression which are original. The law granted by the state constitution prevents the exploitation of the person’s work and gives him control against any exploitation of that work. The commercial exploitation of the work through copy and plagiarism may deprive the author of his rightful reward and incentives. The law therefore, greatly facilitates the person to gain financially through sharing of knowledge or his amongst the public. There are primarily five types of intellectual property rights1: Copyrights; designs; trademark; patents; and performers’ rights. The various branches of intellectual property law in UK come under the purview of Copyrights, Designs and Patents Act 1988. Copyrights The first part of Act deals with the copyright. Copyright is one of the most important part of IP law and help protect the ideas expressed by the persons and which may be categorised as under2: original literary, dramatic, artistic or musical work sound recordings, film or broadcasting work typographical arrangement of published editions In UK, The copyright becomes effective from the time of the creation of the original work and does not necessarily requires for registration of the same. The copyrights grants the author the right to sublet his work and make it available to others via various other media like film, drama, copy etc. subject to his approval. The copyright may also be part of a wider collection and comprise of small but original piece of work vis-à-vis writing, design, music score etc. Design The design may be broadly described as ‘appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation’. These artistic designs which may or may not be registered come under intellectual property law in UK. Trademark The trademark basically refers to the features and signs that differentiate the goods and services of the various people across the business. The trademark may comprise of words and designs which are arranged in distinct ways. They may include words, logos, colours, slogans, 3d shapes etc. Patents Patents mostly cover the development of new products and inventions that may be standalone products or accessories that may act as value addition for some other product. These relate to the technical and functional aspect of the products and become critical factors for products that require new features as value addition on the existing technologies. Performers’ rights These are intellectual property rights of the persons who may become the sole author of making copies of te original work of art. The publishers, music companies, film associations etc may acquire exclusive rights for the productions and promotion of the original work of the artists, authors or inventors of goods and services. Discussion Infringement of copyright for computer program The law is an important part of social structure and can be broadly defined as a set of rules enacted by the sovereign body to maintain law and order and to disperse justice as per the interpretation of the law for the concerned offence. In the recent times, stealing of the intellectual property has increasing become a global phenomenon that needs to be met with stringent laws. The use software code of the ‘Bus Weasel’ by Leona and extreme similarity between the logo of the two devices is a strong case of infringement of copyright and trademark under UK’s intellectual property law. Even though the device is not patented, the copyright of the basic source code or the software code belongs to Marina. Copyright Regulation 1992 (3233) made it necessary for legislative amendment on 1988 Act of UK gives legal protection of computer software and aligns its provisions with that of EU directive3. Marina had developed the software for the joint presentation of project with Leona during her college days. She later developed the said device for London Bus traffic and started trading with the registered logo. Based on Leona also developed another device with same function and using same computer software for the London tube. Nine months later, she had also started trading. Article 10(1) of CDPA (1988) says that ‘work of joint authorship means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors’4. In the present case, the software was solely developed by Marina and therefore, she has the sole right of ownership on the said software. Based on the article above, Marina has legitimate rights for claims for infringement of copyright for her software program. Again, in the college days, the project was a joint effort and presentation required teamwork. Hence, it can also be stated that though the software was developed by Marina, but it cannot be denied that the idea for the same was shared by her teammate Leona. It can thus be concluded that software is jointly owned by Marina and Leona and therefore, no when she had used it for her device to track London tube, she had not infringed on the copyright of Marina. The Navitaire Inc v Easyjet Airline Co & Bulletproof Technology Inc.5 case primarily deals with the infringement of computer software. The claimant, Navitaire had developed a software system called OpenRes for airline booking for low cost airlines who prefer ‘ticketless’ booking. EasyJet is a low cost airline and Bulletproof Technology is the developer of software who had incorporated features of OpenRes while developing eRes, a booking system for Easyjet because of its ‘user interface’. While Navitaire does not suggest that the defendants may have access to source code they do assert that they strived for indistinguishable features and non text copying. They alleged that eRes of EasyJet was made to ‘look and feel’ like OpenRes and there was detailed copying of many computer commands that were designed to generate specific desired outcome, similar to that of OpenRes. Though the infringement of copyright of software vis-à-vis non text copying was not upheld, the case help that the artistic payout of the screen was infringement of copyright. Hence, the ruling can be applied on Marina and Leona case where the same software was used for different purpose. While the fundamental of the program must have been same but the complexities of operation and routes ensured that infringement was not deliberate. The case of the new company that would be marketing ‘Metro Rat’ is highly critical as it deliberately infringes on the ideas and functions of the devices produced by Marina and Leona for London Bus services and London tube. The company intends to market the device in all the major cities of the world and therefore, it acts would adversely impact on the non economic and non economic perspectives of copyright imperatives. The fast advancing technology and globalization were responsible for the amendments in the CDPA (1988) Act. The infringement of copyright by copying, detailed in article (17) specifies that 6; 1. The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows. 2. Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means. … 6. Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work. … Infringement by making adaptation or act done in relation to adaptation 21.—(1) The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work. For this purpose an adaptation is made when it is recorded, in writing or otherwise. (2) The doing of any of the acts specified in sections 17 to 20, or subsection (1) above, in relation to an adaptation of the work is also an act restricted by the copyright in a literary, dramatic or musical work. For this purpose, it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the act is done. (3) In this Part, ‘adaptation’— (a) in relation to a literary work, other than a computer program or a database, or in relation to a dramatic work, means— --- (ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it; (ac) in relation to a database, means an arrangement or altered version of the database or a translation of it; --- (4) In relation to a computer program a ‘translation’ includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code. Thus, the Marina and Leona have major claim on the marketing of the device that performs similar functions as their devices. At the same time it must be realized that the WIPO7 Another very important facet of the problem of infringement of copyright is the adverse financial outcome not only for the owners of the copyrights but also for the states. ‘The creative industries must move from the margins to the mainstream of economic and policy thinking, as we look to create the jobs of the future’ 8. The copyright is extremely important part of invention and new product development. It also serves as huge incentive for the people for the subsequent reward in terms of financial gain. In the contemporary environment of cut throat business, the creative industry offers huge leverage for small and established industries and therefore offers great opportunities for creating value based wealth for copyrights9. Indeed, it contributes 6.4% of the UK’s GDP10, employs 1.9 million11 people and undergone tremendous growth since 199712. In Jimmy Choo v Towerstone13, the designer Jimmy Choo claimed that towerstone company was selling a bag that had infringed on its copyright of designs. He asserted thatb he had the community registration for the design of the bag and also had unregistered design right. The court ruled in his favour and stated explicitly that the overall impression was that the two bags were the same and that the Towerstone handbag was a copy. The device marketed by the company has same functions and therefore the case can be correctly interpreted in terms of deliberate infringement of copyright by copying the functions and usability of the existing device without the permission of the owners. Looking at the wide scope of the devices across the world, it becomes imperative that Marina and Leona make efforts to claim infringement of copyright. Looking at the various physical and intellectual property which are innovative products and services, developed by the individuals or a group of individuals, Bainbridge14 asserts that patenting them greatly facilitates ownership across the globe and thus promotes better rewards and incentives for them. They also promote creative output. Infringement of copyright of registered trademark Trademarks provide the distinctive features that differentiate same products and services produced by business across the world. Trademark greatly facilitates brand creation. Brand creation and advertising are very important part of market strategy. While ‘brand building is needed because products are the same’15 advertising creates the necessary awareness amongst the segmented market to promote and influence the buying decisions of the public. Effective brand advertising therefore, facilitates good market positioning of the products and holds true for all type of companies, wishing to expand and exploit global market to gain necessary leverage. Hence, trademark not only helps in establishing and providing the company with the market credibility but also become critical factor in the promotion and marketing of the product and services. Indeed, advertisements are the most prolific example of segmented marketing where the contents of advertisements are decided by the target group. The case of L'Oréal SA & Others v Bellure NV & Others16 is a case in point. L’Oreal is a famous brand in the field of perfumes and beauty products. The defendants Bellure NV were in the business of import and distribution of perfumes in packaging which the claimant (L’Oreal) alleged violated their trademark. MacQueen et al.17 have interesting pointed out the comment of the judge in the court of appeal that a fragrance might be a source of goodwill, ‘but that does not mean that anyone who seeks to emulate the fragrance is guilty of any wrong’. (MacQueen et al., 2007). The ruling in the UK court confirmed that that the defendants deliberately took advantage of the trademark of the famous L’Oreal group and therefore were liable for infringement of trademark. In the case of Leona also, it can be said that there is huge similarity of her logo with that of Marina’s logo for Bus Weasel and even the slogan sounds the same. Since they are also in the same business of technology based products, Marina can claim infringement of trademark. In Exxon Corp v Exxon Insurance Consultants International18, the claimant contested that the words Exxon was registered as trademark and its use by the defendant is infringement of copyright. But the judgment ruled that since there was difference in the area of business, there would be no impact on its brand and therefore the defendant has not infringed on the copyright of the claimant. In the highly competitive environment of global business, Davis19 affirms that the copyright, patents and trademark often become the major component of competitive advantage. In yet another case, Intel Corp v CPM (UK) Ltd.20, the world famous chip maker Intel filed suit against CPM which is a marketing and telemarketing company in UK. CPM had registered their trademark as ‘intelmark’ and the defendants claimed that CPM had infringed their trademark to gain unfair advantage. They claimed that the confusion in the name would have adverse impact on their business. The court ruled in favour of CPM. Section 5(3)21 explicitly states’ ‘a mark which is identical with or similar to an earlier trademark shall not be registered if, or to the extent that, that earlier trade mark has a reputation in the UK and the use of the later mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark’. The judgment stressed that although Intel enjoys tremendous goodwill in the computer field and has enviable market position, CPM is far removed from the area of Intel and is not regarded as undesirable. Therefore, the products and services and area of business of CPM would not have any significant impact on the business of Intel and neither would they be in a position to gain financially trough the similarity in trademark. Intel appealed and the case was forwarded to ECJ for confirming the extent to which the the trademark in different fields could infringe the copyright. The ECJ clarified that infringement of copyright would be applicable if there is significant adverse impact on the financial outcome of the business. Thus looking at the above two prominent cases, there are huge chances of Leona of not being slapped with the charges of infringement of the trademark. While there is similarity of devices and their functions but the critical factor is that both the devices are being used for different services. Marina trades the device for the London bus, whereas, Leona caters for London Tube and her downward arrow depicts the tube. Thus it can be safely said that Leona has not deliberately undermined the business opportunities of Marina or gained unfair advantage and therefore, her trademark cannot be inferred as an infringement of trademark. In the contemporary environment of advancing technology, the TRIP22 has become the vital link of cooperation amongst the trading countries across the world. Indeed, the Gower’s report has identified IP as the most significant element in the economy of United Kingdom. OECD23 research has asserted that significant percentage of UK’s GDP comes from the creative industries24. It is realized that intellectual property rights, especially, copyrights have huge ramifications for the UK economy and therefore they are looked as UK’s major strength in the current times. Hence, removing barriers and promoting innovation in the business through stringent laws and effective mechanisms has become priority for the UK government25. Reference Bainbridge, David. (2008). Intellectual Property. 7th edition pearson. Ref.: 14 Copyright. Unofficial Consolidated text of UK Law, 3 May 2007. Available from: [Accessed 9 January, 2010]. Ref.: 4 CDPA. Available from: [Accessed 9 January, 2010]. Ref.: 6, 21 Creative Britain: New talets for New Economy. (February, 2008). Dcms. Available from: [Accessed 9 January, 2010]. Ref.: 8, 10, 11, 12 Copyright. Available from: [Accessed 9 January, 2010]. Ref.: 2 Davis, Jennifer. (2008). Intellectual Property Law. 3rd ed. Oxford University Press. Ref.: 18 European Council Directive. Available from: [Accessed 9 January, 2010]. Ref.: 3 Exxon Corp v Exxon Insurance Consultants International [1981] 3 All ER 241. Available from: [Accessed 9 January, 2010]. Ref.: 18 HM Government (2009), Building Britain’s Future: New Industry New Jobs, [Accessed 9 January, 2010]. Ref.: 25 Intel Corp v CPM (UK) Ltd. C-252/07 Available from: [Accessed 9 January, 2010]. Ref.: 20 IPO available from: [Accessed 9 January, 2010]. Ref.: 1 J Choo (Jersey) Ltd. v Towerstone Ltd. & Ors [2008] EWHC 346 (Ch) (16 January 2008) Available from: [Accessed 9 January, 2010]. Ref.: 13 Kotler, Philip. (2005). “Toward Stronger Marketing”. unpublished presentation to the ARF, “Future of Advertising” Conference, Chicago, 10.24.05. Ref.: 15 MacQueen, Hector; Waelde, Charlotte & Laurie, Graeme. (2007). Contemporary Intellectual Property. Oxford University Press. Ref.: 17 Navitaire Inc v Easyjet Airline Co & Bulletproof Technology Inc. Available from: < http://portal.nasstar.com/75/files/Navitaire-v-Easyjet%20Airline%20Co%2030%20Jul%202004.pdf> [Accessed 9 January, 2010]. Ref.: 5 OECD. Available from: [Accessed 9 January, 2010]. Ref.: 23 Spence. Michael. (2007). Intellectual Property. Oxford University Press. Ref.: 9 Trip. Available from: [Accessed 9 January, 2010]. Ref.: 22 The L'Oréal SA & Others v Bellure NV & Others Available from: [Accessed 9 January, 2010]. Ref.: 16 TSB (2009), Creative Industries Technology Strategy 2009-2012, TSB: London. Ref.: 24 WIPO. Available from: [Accessed 9 January, 2010]. Ref.: 7 Read More