Business and Commercial Law - Coursework Example

Business and Commercial Law Name Institution Date Table of Contents Table of Contents 2 Business and Commercial Law 3 Introduction 3 Potential Problem 4 U.A.E. Intellectual Property Law 4 Apple-Samsung Litigation 7 World Intellectual Property Organization (WIPO) 9 Intellectual Property Licensing Agreement 10 Conclusion 11 References 13 Jones, P. (2008). Intellectual Property. London: Sage Publications. 13 Business and Commercial Law Introduction Normally, intellectual property rights are intangible rights. There are two general categories of intellectual property rights and they include “hard” intellectual property rights which consist of patents, trademarks and copyrights and “soft” intellectual property rights which include confidential information, trade secrets and knowledge. Usually, a patent provides the owner with the special right to manufacture, utilize and sell the invention claimed within the patent, and the right to prevent other individuals from doing such. Not only does a patent protect the ideas represented within the invention, it also protects the expression of the claimed invention. When the trademark rights are registered, the owner gets the exclusive rights to use the trademark and the right to prevent other individuals from using it or confusingly comparable marks (Fleming, 2009). A trademark can be in form of words, designs, symbols, color using in packaging or developing the product. On the other hand, copyright give the owner the exclusive right of producing or reproducing the protected work. Copyright can exist within any original literary, artistic, musical or dramatic work. A copyright comes about automatically after the work is created and normally registering the copyright is not necessary, even though copyright registration provides some limited assumptions of validity in case of litigation (Fleming, 2009). This report will discuss the potential problem in intellectual property in a given scenario, UAE intellectual property law, the Apple-Samsung litigation, World Intellectual Property Organization and provide a sample of an intellectual property licensing agreement. Potential Problem The potential problem when developing a technology is that the technology can be similar to another existing technology. This can result to the company being sued of patent violation whereby the company can be accused of patent infringement. Enforcing intellectual property rights in UAE is comparatively easy. This is because there are government department in UAE that have jurisdiction over infringement of registered trademarks, patents and copyrights. This consists of sections in the Department for Economic Development. Authorities have the judicial authority to punish those who infringe the intellectual property law, seize and destroy infringed goods and enforce fines on the infringers (Jones, 2008). As mentioned earlier, there is potential of the company sued for slavishly copying another company’s technology which would amount to infringement of the company’s intellectual property rights. This would entail the owner company suing the company of copying its designs. In case the company is established to be guilty of having infringed the intellectual property rights, the company can be forced to stop sale of its products using the infringed design elements or the company can be forced to license the patents from the primary company. What’s more, this can cost the company a lot of money where by the court can order the company to pay for the damages and also it can potentially cost the company a lot of money in licensing fees and force the company to remove the infringed products off the its shelves (Jones, 2008). U.A.E. Intellectual Property Law UAE intellectual property laws were ratified within 1992 and granted protection for patents, trademarks as well as copyrights. Nonetheless, after UAE becoming a member of GATT, the set laws were reviewed to be compliant with WTO standards (Hansen, 2010). According to the UAE intellectual property law, once an applicant applies for a patent grant, the application is evaluated in accordance with its conformity to standards and patentability as per the Patent Law and this includes the originality, innovation and industrial applicability of the patent. If the patent application is rejected the applicant can appeal to the Committee within the Patent Office. On the other hand, the publication of the accepted patent applications is made within the Official Gazette, and any party opposing the patent can appeal within 60 days to the Committee from the date the application was published within the Official Gazette. In case no party opposes the application, the patent applicant is issued with a utility certificate. Generally, a patent is legal for a period of 15 years and can be renewed for a maximum of 5 years. Patent issued for process inventions regarding drugs and pharmaceuticals are valid for a non-renewable duration of 10 years (Hansen, 2010). Basically, the right to a patent can be assigned or licensed. The law stipulates that an assignment should not impact third parties not unless the recording of the patent assignment has been done at the Patent Office and publication is done within the Official Gazette. Additionally, in UAE, working of patents is a legal prerequisite. In case the patent owner fails to meet the laid down requirements within 4 years from the filing date or 3 years from the date the patent was granted, if the working has stopped for 2 successive years, the patent usage does not cover the UAE demands or if the owner does not license the patent under contract on fair terms, as a result the patent is subjected to obligatory licensing according to the provisions of the law. The subsequent duration for a utility model is 3 years from the filing date and 3 years from the date the patent application was granted. Product importation made under the patent does not meet the usage prerequisite (Graham, 2008). Regarding designs and industrial models, the examination process is more or less the same with patents. The registration of a design or industrial model is only valid for a period of 5 years and can be renewed for two more successive periods. In addition, annuities are supposed to be paid within the last 3 months of the protection duration, although there is a possibility of making a late payment with a surcharge within 30 day from the elapse of the due date (Graham, 2008). When it comes to trademarks, the UAE follows the international classification of goods and services. After the filing of a trademark application, the registrability of the trademark is examined. If the trademark application is approved, its publication is done within the Official Gazette. Similarly, the publication is done within the daily Arabic Newspapers as well as the cuttings of the notices, according to the newspapers publication. The trademark application is then submitted to the Trademark Office. Any party opposing the trademark application can file a notice to the registration of the trademark in 0 days since the last publication date. The Registrar’s verdict concerning the trademark application opposition can be appealed to the Committee within the Trademark Office and the verdict of the Committee can be appealed to the competent court. In case the Trademark application is not opposed, its registration is affected and the pertinent registration certificate is issued (Hansen, 2010). The validity period of a trademark registration in UE is 10 years from the date when it was filed and can be renewed for comparable durations. Additionally, it is possible to assign ownership of a registered trademark with or without the commercial venture utilizing the trademark. The trademark assignment can only have effect vis-à-vis third parties only if it has been recorded within the register and its publication done within the Official Gazette. However, any party can request the court to nullify a trademark in case the trademark owners do not utilize the trademark within the UAE for 5 successive years from the date it was registered (Ingrid, 2010). In UAE, copyright interests are protected under the Copyright and Authorship Protection Law No. 40, 1992. Copyright registration is not obligatory, even though a trademark registration is termed as the authoritative reference to the copyrighted information. However, failure to register the trademark does not involve infringing upon the right of the author. Normally, the validity period for a copyright registration is lifetime of the author in addition to 25 years following the author’s death. The validity duration for cinematographic films, art works, works from corporate bodies, and such are only protected for 25 years. The validity duration of photographic works is 10 years (Fleming, 2009). The legal fee for processing intellectual property transactions within UAE is high. This includes official fees like renewing trademark and allied transactions. The legal fee for registering trademarks is normally $2,000 and basically this acts as a barrier to entry since fewer trademarks are registered. If the fee was relatively lower, registration of more trademarks may have taken place in UAE (McNamara, 2007). Apple-Samsung Litigation Apple-Samsung litigation started when Apple issued an official compliant on April 15th 2011 accusing Samsung of copying its innovative technology, distinct user interface, as well as product and packaging design, and thus Samsung violated intellectual property rights of Apple. The most notable thing is that Apple was against Samsung copying its design elements (David, 2012). The complaints included trade dress infringement against Samsung under 15 U.S.C. -- 1125 and 15 U.S.C. -- 1114. Normally, Trade dress is a form of intellectual property and it includes the visual aesthetics of a product or packaging and design elements that denote the source of the product with customers. This refers to any iconic visuals spurring brand recognition with the customers. This law protects the consumer from confusing a product affiliation of one company with another. In this case, Apple had convinced the US Patent and Trademark office that these elements should be protected. Furthermore, the issue was if the design of products from Samsung could end up confusing customers into thinking that they were Apple products. The other claim of Apple against Samsung was infringement of design patents (David, 2012). The hardware and software trade dress claims included Samsung copying Apple’s rectangular shape product, bottom row of square icons, iPhone and iPod touch products and the display of a grid of colorful square icons. The packaging claims included the rectangular box of the Apple’s products in addition to a large front-view of the product and usage of a tray that supports Apple products to make them instantly visible on opening the box. The trade dress claim included three particular iPhone trade dress elements. Basically, Apple is registered with the US Patent and Trademark office. As a result, Apple had proved to the relevant authorities that the elements are distinctive and protectable as well. On 24th July 2011, Apple outlined the proposed damages resulting from Samsung patent infringement to amount to $2.5 billion (Stacey, 2012). By August 2011, Apple and Samsung had about nineteen lawsuits within twelve courts in 9 countries and by October 2011 their legal battles had expanded to ten countries and by July 2012 the Samsung and Apple had about fifty legal cases worldwide with both companies claiming billion of dollars from each other. A US jury court ruled that Samsung was guilty of patent infringement against Apple and ordered Samsung to pay more than $1 billion to Apple (Stacey, 2012). World Intellectual Property Organization (WIPO) WIPO is an international organization that facilities international protection of the rights of innovators and owners of intellectual property. The key objectives of WIPO include; harmonization of intellectual property laws and processes, providing services for worldwide application for industrial property rights, exchanging intellectual property information, providing legal and technical help to developing countries, facilitating settling of intellectual property disputes, in addition to marshalling information technology as a way of storing, accessing, and utilizing important intellectual property information (Christian, 2006). WIPO was established in 1970 with the mandate of promoting the protection of intellectual property worldwide. WIPO became a specialized body of United Nations (UN) within 1974 and the WIPO was assigned the responsibility of promotion of innovative intellectual activity and to facilitate the exchange of technology allied to industrial property to the developing countries to enable them speed up economic, social as well as cultural development, subject to the competence and obligations of the UN and its organs (Ventrell, 2012). Basically, WIPO has set up WIPOnet, which is an international information network. WIPOnet project aims at linking more than 300 intellectual property offices (IP offices) within each and every WIPO Member State. This is to say that apart from providing a secure communication link among all connected parties, WIPOnet is the basis for the intellectual property services of WIPO (Christian, 2006). UAE is a member of WIPO and has signed WIPO convection as well as WIPO Copyright Treaty Intellectual Property Licensing Agreement This is an Agreement between Emirates Technology Corporation, organized under the laws of UAE, with a principal place of business at Dubai and Flat panel. WHEREAS, Emirates Technology Corporation has authorized Flat panel as an agent to administer its respective trademark and licensing programs and WHEREAS, Emirates Technology Corporation has authorized Flat Panel to enter into this Agreement on its behalf to license the use of its products; and WHEREAS, the licensee desires to manufacture, advertise and sell the licensed products, Emirates Technology Corporation is willing, subject to specific conditions, to grant this license (Camino, 2002). Grant of License a) Grant: Following the execution of this Agreement, and subject to its terms and conditions, Emirates Technology Corporation, through Flat Panel grant Licensee the Licensee the non-exclusive, revocable, non-transferable rights to manufacture, advertise and sell the licensed products. b) Term: The Licensee will execute such rights according to the Emirates Technology Corporation guidelines, policies and regulations given to Licensee, which will be perceived as part of this Agreement. c) Rights Reserved: Nothing within this agreement shall be interpreted to prevent Flat Panel or Emirates Technology Corporation from granting any other licenses or rights to utilize the licensed products. Emirates Technology Corporation shall retain the right to use and license its respective licensed products. d) Term: This Agreement shall start effective as of the last date of the signing and shall expire on 20th January 2020, unless terminated sooner (Donald, 2006). e) Renewal: After the expiry of the license, if Licensee has complied with each and every term and condition under this Agreement during the preceding term, Licensee will be considered for renewal of this Agreement. f) Limitations on License: This license is subject to the below limitations and requirements, including other limitations and requirement set forth within the Agreement: Licensee shall not use the licensed products for any other purpose other than the ones authorized within this Agreement. Licensee shall not utilize any brand names apart from the authorized brands. Licensee shall advertise, distribute, and trade the licensed products only using the authorized Distribution channels. The licensee shall not contract a third party for production of licensed products without Emirates Technology Corporation’s prior written authorization. Conclusion Intellectual property rights are normally established by statute and this means that they exist from legislation which defines and limits the level of protection given to a specific intellectual property right. The UAE government has instigated varying steps to protect intellectual property rights through its own enforcement agencies. This has resulted to an intellectual property law whose purpose is to protect intellectual property rights in UAE. The World Intellectual Property Organization has the mandate of facilitating protection of intellectual property rights of creators and owners globally. Generally, UAE is a member state of WIPO and has signed some treaties with WIPO. When drafting a license agreement, the nature of the intellectual property being licensed should be understood. A license agreement is important because it prevents legal battles like the one that took place between Apple and Samsung following claims of intellectual property infringement by Apple against Samsung. References Camino, R. (2002). Hand Book of Best practices: Licensing Agreement. New York: Stanford University. Christian, W. (2006). The World Intellectual Property Organization. Geneva: WIPO. Donald, M. (2006). Key Aspects of IP License Agreements. London: Goodreads Publication. David, H. (2012). Apple v. Samsung litigation. New York: Beasley School of Law. Graham, J. (2008). Intellectual Property Rights in United Arab Emirates. London: Thomson. Jones, P. (2008). Intellectual Property. London: Sage Publications. Fleming, Q. (2009). Intellectual Property Law. Upper Darby, PA. Ingrid, G. (2010). Intellectual property law in UAE. Dubai: ABCDO. Hansen, P. (2010). Intellectual Property Law and Practice of the United Arab Emirates. Dubai: Hansen Publishers. McNamara, F. (2007). Intellectual Property Law. Oxford: Oxford University Press Stacey, A. (2012). Apple v. Samsung. Bloomberg Finance L.P. Vol. 3/ 11. Ventrell, P. (2012). The World Intellectual Property Organization (WIPO). Washington DC: US Department of State. . Read More