Intellectual Property Law - Case Study Example

IP law al Affiliation) Intellectual property law Intellectual property are those that are the works of individuals and are protected with exclusive rights from having copyrights. The intellectual properties can include journals, music and other works that are artistic. The rights that govern the intellectual properties include that of the patents, copyrights, trademarks, trade secrets and also the industrial design rights. The law are those of the intangible property. There have been variety of the rights such as those of the design rights that are protected under the Integrated Circuit Topography Act that is much used in Canada and also in the laws that govern Europe. Patents that are common in the intellectual property law is mainly that which prevents the others from the trading, the production and selling an inventory for a given period of time that is always limited. The right also prevents the public disclosure of the invention (Bently and Sherman, 2001). The patent rights aim mainly in the stopping in the disclosure of an invention which is mainly that which is brought to solve a specific problem due to technology through a process or bringing a product. Copyright in the intellectual property right is that which gives the person who came up with the idea full rights to it for a given period of time that the owner may desire.. Copyrights apply to a wide range of artistic work or range of creativity. The law does not cover the invention or the artistic work itself but the way through which the work is expressed to the public. Industrial design rights are also in the intellectual property laws and they tend to protect the visual design of a product that an industry might have come up with. In the industrial design it constitute the configuration of the product, the shape and also the composition of the pattern and the color that is used in the product. The design in the industry is that which can be two or three dimensional but both are protected in the law. This is due to the fact that all the dimensions are used in the coming up with the industrial product and the designs. Trademarks are also included in the intellectual property law and it is the recognizable sign or righting with brings out the design and the product that a given company uses (Bently and Sherman, 2001). It aims in the distinguishing of the product that is produced by a given trader from the rest. The trademarks also always represents the services offered by the trader. In the intellectual property law there is also trade dress which is the art that refers to the properties of the visual of a product or the package that the given product has from the company where it is manufactured. The trade dress mainly aims in the signification the origin of the given product to its consumers. Trade secretes is an instrument or practice which is always hidden to allow a business to obtain an economic advantage over the competitors with the same product or from the consumers of the product. In countries such as the Unites States, the trade secrets are handled at the state levels through the Uniform Trade Secrets Act. The act makes the going against the law through misappropriation or disclosing the secrets a federal crime. The secret laws are varied in regard to the country in which the laws operate. In the implementation of the intellectual property laws there are objectives that are looked into by the owners or the companies. The main objective in the implementation of the laws is to promote the progress of the works. This is done through the exchange of the rights to the disclosure of the inventory works that brings the mutual benefit to the owners. In the objective, there is also creation of incentives for the investors and also the authors of the works in the creating and disclosing of their work. There has been notice that the objective also tend to make the products have absolute protection. The law is necessary in the sense that it encourages innovation in the markets and also I leads to more reasoning of people in the economic market. In the law there is financial incentives to the owners. The financial incentives allows the owners to benefit from the inventions that they have created. The financial incentives in the law allows for the creation of investments in the intellectual property and in other such as patents allows for the payment of the costs that are incurred in the research and development of the ideas (Bently and Sherman, 2001). The law brings about economic growth through the statutory expression of the economic rights of the people that come with the idea in their creations. It also promote the policy of creativity in a country and also encourage fair trading in an economy which in turn leads to economic development. The laws brings morality such that everyone has the right to come up with an invention and have protection to the materials that come from the invention. Private international law Private international law is the law that brings out the legal framework which mainly constitute of the legal guidelines , the custom and the practices which aims in the regulation of the relationship that is between individuals in the international context. The lw can also aplly to the private companies that operate in a country. The application of the law in a court is done in two major processes with the first step involving the application of the law of forum to all the maters that occur through procedure. The second process in the application of the law will concern the link of the legal issues to the law in the relevant state. The application of the private international law occurs in the unmarried persons, to the married and the legal dissolution of the marriage. In the application in the contracts that are made between individuals, it is done in the form that creates a binding agreement between the parties that are involved in the agreement. In the law there is choice on the actions that the court can apply to the dispute that occurs between the parties that are involved in the contract. The law also allows the judges to use the principle of autonomy that allows the people that are involved in the contract to choose the law that is most appropriate to be used in their transaction or in the contract that they enter. It brings out the concept of the freedom of contract between the people involved in the making of agreements. The law eliminates the traditional reliance that occurs to the people in the contract and the objectives that connect the factors in the contract. The law comes with a disadvantage to the consumers as there is a habit of the selection of a one side contractual terms when they are engaging in the agreement. In the harmonization of the laws, there should not be the approach that apply the national legal system to conflict against the other. The interest of the parties that are involved can be protected through the application of a law that has the consideration of the international realities. There has been the aim in development of a system that is used for the ones that enter into a contract. This brings the need of an international law of contracts that aims in the making the judiciaries to apply the principles in the law to make uniformity in the emergence of cases. Intellectual infringements in private international laws and intellectual Property Laws In infringement in private international laws is done in the approach from the flow that occur in the territory of the intellectual property rights. The issue that arises in this case is concerned with the copyright infringement actions. The choice of the law that is to be used in this case is due to the infringements of rights that are foreign in the country were the law is applied. This is due to the fact that there occur remoteness in the trademarks and patents. There can be reward in the United States for the recognition of the territory system. This can make the making of one copy in the united states that later results to the making of many copies abroad that are not authorized.in the infringements the court at a common law will come up with thw proper law that defines contract in the different sectors. There have been adoption of different approaches to choice of law in the United States from time to time. In the infringement of intellectual property laws, there is the issue of not keeping up with the changes that occur in the rest of the world in terms of technology since the mechanisms that come about due to the technological changes can out do the ones that are needed in the protection of the property rights. The technologies has made the protection of the intellectual properties to be critical (Davis, 2008). With the limited resources that a company has there should be pressure on the stakeholders to come with the strategies to the investments and adequate protection of the rights. The effects on the rights also have come due to the changes that have occurred in the economic environment influencing the models of the business that brings the pressure in the recognition and the valuing of the assets that are both tangible and also intangible in a company. The evaluation of the protection of the intellectual properties should be those that are cost based, market based and also income based. The methods can be applied such that there can be arrival to final valuation with the elements that results to more protection of the inventions. Article 5 (3) of council regulation number 44/2001 The article is based on Brussels Regime which are the set of rules regulating the courts on the jurisdictions in the legal dispute in the nature of individuals in the states that are members of the European Union and the European Free Trade Association (Hart, Fazzani and Clark, 2006). The article has deeply analyzed for jurisdiction for the dispute to be heard and the enforcement of the judgment of the foreign. There was a signing of trinity that were members of the communities. The treaty that was signed has severally been amended and was almost outdated by the regulations that were adopted in 2001. The treaty currently applies to 15 members of the European Union and some of the territory that are in the European Union territories. There has been signing of treaties where in 2007 there was Lugarno Convection signed in Iceland with the intension of the replacing of Brussel Convection (Gillies, 2008). There was also an agreement on the amendments done to the Brussel Regulation to give the Unified Patent Court. The amendments are formally proved. The legal instruments are familiar in the context and also application and this leads to the coming up with the general rule in the suing of individual in their territories. The Brussel Regime covers the steps that covers the legal disagreements that are either civil or commercial. The amendment that was done in 1978 include the sentence to those that went against the rules (Hart, Fazzani and Clark, 2006). The convention is set that it does not extend to the revenue and the administrative matters in the protection of a product by the company. The amendments that were done in 2012 also specified that there should be no extension to the liability of the states in the omissions and the acts that occur in the activity of exercising authority of the state (Spiers, 2009). The regulations that were done aims in the jurisdiction where there is determination of the court that is able to take or hear the case that comes about but it does not restrict on the law of the court (Hart, Fazzani and Clark, 2006). There is possibility and also frequency in the application of the foreign law application by the national courts. The article specifies the suing of a member state in which the person resides or where the person originates (Spiers, 2009). The determination of the action to be taken this way depends on the law of the court that is involved in the hearing of the case since an individual can be reside from more than one state at the same time (Norman, 2011). The article in the origin mainly applied to the people that resided from the European Economic area or from Switzerland but the amendments that were done in 2012 removed the rule to fit those that also resided from other places and not only the two places that were covered (Holyoak and Torremans, 1995). The regime allows jurisdictions in the contracts were it preserves the rights of the parties that are involved in the contract to the reaching of an agreement at the time in which the two or more individuals reach agreement in the contract. The regulations that occurred in 2012 led to more pressurizing of the respect on the rules even after a court that is not covered in the regime has entered into agreement (Cheshire, 1961). The application of the regime occurs only in the courts where the Lugarno convention are applied resulting to lack of prevention of a party that is not a member in making of other regulations that do not go together with those of the regime in their courts (Norman, 2011). Brussels 1 regulations The regulation brings out the rules that govern the jurisdictions of courts. It also brings the regulation that a declaration on the judgment can only be enforceable when there has been formal check in the documents that are supplied by the person (Cheshire, 1961). The regulations are set such that they do not apply to the social security of the situation and the arbitration. The bankruptcy and also the legal capacity of a person does also not apply in the regulation by the principles (Davis, 2008). Brussels regulation applies to several situations that include the matters that are related to contracts making it a general rule. In such a situation there will be dealing with it as the place of performance on the obligation in the situation or the question that has come about. The regulations are also applied to factors that relating to the maintenance as being a general rule that makes them to be brought in the courts when the maintenance creditor is a resident in the place where the contract was agreed on (Cheshire, 1961). There is also application of the regulation in the factors that are related the liability that comes about by the wrong act or those that re in the tort of law. This are majorly decided by the court in the relation to the place where the act that brought the harm has occurred (Spiers, 2009). The matters that are related to insurance in the European Union can also be decided with the consideration of the regulations. This allows for the suing of a person that has gone against the insurance in the courts regardless of the nationality of the person (Edenborough, 1995). The suing is done in the accordance to the domestic laws of the country from where the person comes from. There are also regards to the matters that relate to the individual contracts of employment and also the contracts that are concluded by the consumers (Norman, 2011). The consumers are protected only in the regulations only when the contract that is concluded in the sales that occur in the good is done and has affected the financial status through the payments or the installments that are to be made. The regulations that are applied are done in the regardless of several factors that could affect it. The factors include the validity in the registration that are done to the EU (Edenborough, 1995). There is also the implication of the regulation is also done regardless of the validity of the constitution that might lead to the dissolution of some of the companies. There is also the regardless of the registration that are done to the patents, the designs and the trade marks. The regards are also not paid to the enforcement of the judgment that are to occur in the breaking of the terms. In the enforcement and the recognition of the regulations, the principle that applies is that which the judgment that is given in a particular country that belongs to the EU is applied across other country that also belong to the EU. Case law The case law is the Norwich pharmacal jurisdiction that involve the claimant being the owners of the patent that was for a chemical compound. The patient was being infringed with the importation of the manufactured chemical and the claimant needed to get the address and also the names of the importees of the chemical (Davis, 2008). The claimant then decided to bring the action that was against the commission in the allagement of infringement by the importers and they also were seeking orders for the disclosure of information that they thought to be relevant. The commission that they needed to produce the relevant information claimed privileged in the refusal to produce the information that was needed. The appellant then appealed to the House of Lords. In the appeal that was done to the House of Lords, there was ruling in the favor of the Norwich Pharmacol since they are the ones that made an order in the discovery of the against the customs and also to the commissioners. The commissioners were also considered to be in the duty to the disclosing of the information about the chemical (Edenborough, 1995). The house of lords also thought that the through the lack of faults when a person gets mixed up with the act that occur due to the others to come up with the wrong doing making them to have the personal liability but the person comes under the work of assisting the person that have been wronged through the giving out of the information that is needed in the disclosing of the wrongs and also the persons that does the wrongs (Gillies, 2008). The house thought that there was no justice in the hiding the wrong through the lack of concentration. Another case law is that of the Rugby Football Union and the Viagogo. In the case Viagogo allowed tickets that were of an international rugby match to be advertised on its website with the prices that were being quoted being higher than the face value (Holyoak and Torremans, 1995). The rugby association brought to the attention that it was offended by both the sellers of the tickets and the people that bought the tickets. The association tried to stop the sales of the tickets. The association argued that Viagogo was the rightful person that was involved in the wrongdoing and needed the court to identify the person that was involved in the selling of the tickets and also identify the tickets that were sold (Gillies, 2008). In the judge of the case there was identification of the wrongs that were committed to the association and also they identified the fact that the disclosure of the information that was needed by the association was necessary for the redress. The court was not sure in the exercising its discretion in the favor of granting relief. The court ruled that there should have been the regard in the involvement in the fundamental rights of individuals in the EU charter. They considered the article seven that states that everyone has the right to respect to the private and family life and the communications that the person does. This led to the ruling in the favor of the rugby association. In the cases there is consideration of Brussels regime and the regulations that are stated in the regime. References Bently, L. and Sherman, B. (2001). Intellectual property law. Oxford: Oxford University Press. Cheshire, G. (1961). Private international law. Oxford: Clarendon Press. Davis, J. (2008). Intellectual property law. Oxford: Oxford University Press. Edenborough, M. (1995). Intellectual property law. London: Cavendish Pub. Gillies, L. (2008). Electronic commerce and international private law. Aldershot, England: Ashgate. Hart, T., Fazzani, L. and Clark, S. (2006). Intellectual property law. Basingstoke: Palgrave Macmillan. Holyoak, J. and Torremans, P. (1995). Intellectual property law. London: Butterworths. Norman, H. (2011). Intellectual property law. Oxford: Oxford University Press. North, P., Fawcett, J. and Cheshire, G. (1992). Cheshire and Norths private international law. London: Butterworths. Spiers, D. (2009). Intellectual property law. Dundee: Dundee University Press. Read More