Women Clothing Trademark Dispute, the UAE Trademark Law - Coursework Example

Women Clothing Trademark Dispute Name Institution Date Women Clothing Trademark Dispute Introduction The laws of intellectual property grants exclusive rights to intellectual property owners to protect their property such as trademarks, industrial design, patents copyrights and at times trade secrets rights. The rights cover intangible assets like musical and art works, discoveries and literary works (Flanagan & Montagnani, 2010). International organizations such as the World Intellectual property Organization form treaties and hold conventions with countries in order to protect intellectual property rights and enhance economic growth (Richard, 2008). The rights protect nationals of different countries and resolve intellectual property issues between countries. Fraud in the commercial sector and infringement of intellectual property rights surprises the growth of the economy. Protecting Company rights against such infringements and fraud ensure sustainable economies (Jacobson & American Bar Association, 2007). Trademarks provide an identity to services or products and occur inform of signs, expressions or designs. Names of brands that identify a given product line also serve as a trademark for that product line and the owner has exclusive rights to the name. In case of infringement of such property, the dispute is enforceable by law since there are legislative provisions for such. UAE is one of the countries with strict regulations protecting the intellectual property o individuals and businesses. Due to expansion of its trade operations, more businesses are being created and new ideas are also being introduced in the market that needs to be protected. This is evident in the case of two women clothing businesses bearing almost the same trading name. Problem statement Kay Lowe is being accused of infringing the laws governing intellectual property on trademarks through a lawsuit filed by Keisha Lowell who is a fellow business person, actress, dancer and singer through her attorney. This is after the defendant refused to change quit using her trading name as per the demand of the plaintiff. Both parties in the dispute are producers of women clothing. Keisha identified Kaylo stores during her trip to Dubai. K.Lo has been registered internationally as a trademark from the singer’s famous name to her family and fans. This was registered by her and business partners as an advantage to the business due to Keisha’s celebrity. Keisha and partners’ product line started supplying their products including high end perfumes and cosmetics other than women clothing under K.Lo brand in 2010 through its forty two stores globally. The second party, Kay Lowe, who was an entrepreneur and business consultant, set up a business named KayLo dealing in the same product line as K.Lo at Dubai after moving in with the husband from Toronto, Canada. KayLo is based in Deira Dubai at the city center and offers less expensive clothing for women in Dubai and for online customers through its business website . In this case, Kay Lowe is likely to be accused of contravening the trademark of K.Lo thus breaching laws of intellectual property with respect to trademarks. Since the law suit was filed in the Dubai Court, Dubai (UAE) intellectual property laws protecting trademarks will be applied to rule the case. The United Arab Emirates ministry of trade and Emirates Trade Corporation are cautious about issues of violation of property and fraud in the business sector. This is in line with the new businesses that are being introduced in the market which improve competiveness and enhance efficiency and effectiveness. The United Arab Emirates (UAE) economy is growing at a very high rate. The country is opening up to diversification and allowing investments through new business from other countries globally. In such an economy, counterfeits, commercial frauds and property infringement is common which are likely to slow the growth of the economy. According to Rodgers, (2010), the UAE government is implementing policies to boost its intellectual property law to measure up with the global standards. The essay will evaluate the intellectual property law with regard to trademarks in the UAE, the Keisha Lowell (K.Lo) Vs Kay Lowe (KayLo) litigation, and evaluate the World Intellectual Property Organization (WIPO) and UAE membership. It will also review the licensing agreement that Emirates technology will use to avoid any possible litigation. UAE trademark law The UAE government has endorsed intellectual property laws to protect owners of such property. According to Peter (2006), the UAE federal laws of 1992 No. (37), (40) and (44) for trademarks, intellectual property and copyright, and industrial property respectively protect design patents, trademarks and inventions. Its membership in General Agreement on Tariffs and Trade (GATT) gave UAE a chance to revise its roles to comply with Trade-Related Aspects of Intellectual Property Rights (TRIPS) as an effort to protect property rights. Trademarks Trademarks are any patterns, seals, names, logos, letters, figures, signatures, graphics or titles that are eminent and are used by individuals or groups of people in differentiating their products or services from others as defined in Article 2 of the UAE trademark law. Any such marks with intentions that indicate ownership of certain products and/or services by the owner of a trademark by means of them providing, trading or manufactured is also incorporated in the definition. The law considers voices associated with trademarks to be a part of them. UAE trademark law is provided by the federal law No. 37 issued in 1992 by the late Sheik Zayed bin Sultan Al Nahyan. This was a result of rising importance for trademark protection if the country was to realize local economic growth and success. This law was modified in 2000 by enacting law No. 19 of 2000 and also in 2002 by enacting law No. 8 of 2002. Both laws focus on protecting customer’s and businesses’ interests by registering trademarks within UAE. It is only the ministry of Economy that is allowed to register trademarks in the UAE. Application of the registration at the ministry is applicable in whole of the UAE seven countries. Submissions are made in accordance with the legislative requirements. United Arab Emirates follows the international processes of classifying goods and services. An analysis of a trademark is made to determine its compliance with the registration formality after trademark application is made and submitted (Campbell, 2007). If the registrar accepts the application, it is then published in the Official Gazette. It is also published in two Arabic newspapers published daily and locally. The notices in the newspapers are then expected to be cut and presented to the offices of Trademark. A trademark is usually registered and the office, through the registrar awards the parties a certificate of registration in case there is adequate compliance and no appeals from any of the parties. In case any of the concerned parties opposes the trademark, they have the right to place petitions for reconsideration of the trademark registration within 30 days after the final publication date. This is provided by article 20 of the federal law for trademarks. If it’s the registrar’s decision, the request can be made to the committee and if of the committee, the request is made to the applicable court. After registration, the validity of the trademark as provide by section 19 of the federal law lasts for 10 years after its application date and is expected to be renewed after every ten years. The allocation of ownership of a legal trademark to business enterprises can be done in cases where the trademark is used by the business or when it is not used. MEAC (2007) report indicates that, the effectiveness of an allocated legal trademark to third parties is invalid unless its validity is approved through recording at the registrar and its publication in the Official Gazette. In case the business entity does not use the registered trademark in its name for 5 successive years; any concerned party has the right to appeal for cancellation of the trademark by the court. Cases of forgery as provided in article 37 and 38 are enforceable by law. The victim is penalized through imprisonment, with a fine of at least AED 5000. This is because, forgery is considered as misleading to the public and cause bad influence to citizens. There are cases where trademark signs are denied registration by the trademark law in UAE. In case businesses use common signs with no unique properties such as common names for commodities, the registration of trademarks will be denied by law. Imitations of public signs, logos or flag of UAE or any other Arab countries and international organizations including foreign countries are not allowed without authorization. Other signs denied include symbols include Red Crescent symbols, Red Cross or any type of symbols imitating such. Misleading signs to the general public or signs containing misleading statements and commodity descriptions on their sources are denied registration. This covers fictitious and trade names that have been forged and it is proven by law. There are some names and signs that are automatically considered as forged and therefore cannot be registered like those including names such as copyrights, concessionaire, registered drawing, concession and registered or other imitations of the words and such phrases. The treatment of designs and industrial modes in the UAE is of no difference to that of patents. According to Campbell (2007), the validity of design and industrial models lasts for only five years after registration. This is is followed by a 2years renewability in an additional five successive years. Payments (annuity) are required to be made within the last three months of the protection contract. However, late payments are allowed within three months after the closing date, but with an extra charge/surcharge for the lateness (Oxford Business Group, 2010). The UAE trademarks law considers protection of a trademark a legal obligation. The law provides conditions to the owners of business trademarks regarding their operations. Failure by the owner to comply with the working requirement or does not meet the UAE demands and refusal by the owner to license the business under fair contractual term, the law then enforces a compulsory licensing of the business. However, Utility models have a different provision regarding the period. They are allocated 3years after the filling date and 2years after the awarding date. The use requisite is not met in case of importation made under a trademark laws. Keisha Lowell (K.Lo) and Kay Lowe (Kay.Lo) litigation Keisha Lowell, a singer, dancer, actress from Australia and Kay Lowe who is a business consultant and entrepreneur from Toronto are both business people owning women clothing product lines in Dubai at the UAE. The basis of dispute was Kay’s business name Kay.Lo which Keisha considers as close to her trademark which is registered internationally. This is also considered as infringement of trademarks registered worldwide. Keisha through her attorney posed accusations regarding violation of her trademark registered globally. However, the exclusive jurisdiction rules require that the two parties file lawsuits in their respective countries before pursuing the case on a single proceeding. There are no indications what so ever that Kay.Lo was a registered business. Basing on that fact, articles 37 and 38 of the trademark federal law would deny registration of the trademark. The same article will still deny registration of the trademark if it is proven by law that it is an imitation of Keisha Lowell’s K.Lo product line. The law does not allow imitations since it is considered as forgery and misleading of the public. Being an entrepreneur and business consultant, Kay Lowe is expected to have mastered the requirements provided by business laws and registration procedures. The World Intellectual Property Organization World Intellectual Property Organization (WIPO) is a United Nations organization which protects the intellectual property rights globally, founded in 1967. The body offer support to the intellectual property rights through its services, legal governance and provisions of infrastructure. WIPO has invested in research regarding assessment of industries’ economic contribution in terms of copyrights and other right protection issues since 2002. According to May (2007), WIPO has focused on strengthening its influence on governance with experienced expertise and professionals it has collected over the years. it has enhanced economic development through protection of the intellectual property. WIPO has also boosted infrastructure thorough the establishment of networks and developing strict policies governing the sharing of information, business dealings related to intellectual property and free databases. It has also employed the use of the available opportunities for collaborations and conventions such as UN Conference of Trade and development, Un Development Program and the UN educational Scientific and cultural Organizations (Rogers, 2010). It serves a big role in establishment and maintenance of international laws that govern intellectual property according to the developing requirements of the society. The systems that WIPO operates and offers abridge the processes of acquiring intellectual property protection globally for designs and trademarks, resolve arguments related to intellectual property and assist in the appellation of origins. The UAE is a member of the WIPO and adheres to the provisions of WIPO regulations in protecting intellectual property in the country (WIPO, 2004). Intellectual property licensing agreement The 26th November 2012 intellectual property agreement was for the purpose of licensing intellectual property in the case of K.Lo women product line. Using the K.Lo and Kay.Lo case, agreement to licensing agreement is required on the part of the involved company, otherwise the use of trademark is not allowed. Limitations With reference to the agreement, K.Lo and Kay.Lo permits the following for the contract term: Distinction of the business names for both companies to avoid future disputes Keep records hof their trademark agreement for future references. Install a provisioning profile on all registered devices to enable distribution and usage of applications The owner of the trademark reserves the right to determine the restricted number of products that every licensee can register with the business and acquire licenses (Miller, 2012). Trademark Usage The licensor herein gives the licensee the right of using and displaying licensor’s trademarks, service marks, as well as trademarks and trade names that are pertinent to licensor products as per this agreement. The licensee can utilize any of the licensor’s Marks as a feature of its company, or trade (Ray, 2008). Authorization The company has all the power and authority to execute and convey the Agreement to carry out the transactions reflected herein as the licensor. The implementation, delivery as well as performance of this Agreement and the usage of the transactions carried herein have been appropriately permitted as per all essential action obligated by the law, the licensor’s Article to be taken by the licensor to approve the implementation and delivery of this Agreement and the agreement stipulated hereby or the usage of the transactions carried out herein and therein (Ray, 2008). Binding Agreements This agreement consists of the legal, legitimate and binding responsibilities of the licensor, enforceable according to its items. Conclusion Intellectual property protection serves a big role in maintaining the stability and sustainability of the economy. Violation of trademarks and other intellectual property can slow the growth of an economy and affect its performance. Implementation of intellectual property rights and regulative legislations to protect the rights solves the violation problem and protects the general economy from retarded growth. Partnering with international organizations protects the country’s economy and ensures international stability. Mastering intellectual property agreements also equips companies with obligations and rights they have and avoids lawsuits and petitions with regard to intellectual property. References Ray, R. (2008). Intellectual Property Licensing: Forms and Analysis. Law Journal Press, 1998- 2008. ISBN, 973-58852-086-9. Jacobson, J. M., & American Bar Association. (2007). Antitrust law developments (sixth). Chicago, Ill: Section of Antitrust Law, ABA. Miller, R. (2012). Fundamentals of Business Law: Excerpted Cases. New York: Cengage Learning Flanagan, A., & Montagnani, M. L. (2010). Intellectual property and social justice: A law and economics approach. Cheltenham: Edward Elgar. Richard, T. (2008). Intellectual Property Rights." In The Oxford Handbook of Business Ethics. Oxford, England: Oxford University Press. Rogers, M., (2010). Innovation, Intellectual Property, and Economic Growth. New Jersey: Princeton University Press. Peter, H. (2006). The United Arab Emirates Yearbook. Dubai: Trident Press Ltd. Middle East and Arabic Countries: Copyright law handbook. (2007). Washington DC: International Business Publications. Oxford Business Group(2010). The Report: Ras Al Khaimah 2010. Oxford Business Group Campbell, C. (2007). Legal Aspects of Doing Business in the Middle East. International Business,Lulu.com. WIPO. (2004). WIPO Guide on the Licensing of Copyright and Related Rights. WIPO publication, Issue 897. Read More