Intellectual Property Rights - Advice to Fred And Wilma - Math Problem Example

Intellectual Property Name: Course: Tutor: Date: Intellectual Property Advice to Fred Fred has Intellectual property rights over his music. This is because the music that he performed at the local clubs is his original composition. Jim also has intellectual property over the music because they recorded and performed the music together. Although they did not have access to professional recording companies and broadcasters, they had Intellectual property rights over the music. Fred also had intellectual property rights over the computer program that he created. Fred however infringed the intellectual property rights of other parties. He infringed the property rights of the Hollywood film Batman for using the Bat logo as a cover of one of his recordings. Finally, both Fred and Jim have performance rights over the music that they performed at the local clubs. In order to understand this concept, it is important to go through the paper. Intellectual property rights The intellectual property (IP) is the creations of the mind, which include the inventions, artistic works and literary works, and images, symbols, names and designs used in commerce. Fred’s composition in form of the music that he recorded with Jim is an example of Intellectual property1. The intellectual property rights refer to the fights given to creators and owners of the resultant human intellectual creativity works2. Intellectual property is divided into two major categories: industrial property that involves inventions (patents), industrial designs, trademarks, and geographical source indications. The copyright property includes literary and artistic works like poems, novels, films, musical works as well as artistic works like painting, drawings, sculptures, photographs and architectural designs3. The copyright rights contain those of producers of phonograms in their recordings, performing artists in their performances and those of broadcasters in their television and radio programs4. Note that Fred and Jim possessed the intellectual property rights as a whole because they were artist who came up with their own compositions and invention in case of the computer game thus they must be protected by the intellectual property5. Fred thus had copyright property rights over the music as well as the computer game because he originally came up with the inventions. This is well brought out in the following concept. Copyright As mentioned, Fred had copyright over his music and the computer game that he developed. Copyright is the most common basic form of Intellectual property as it protects the expression rather than the idea since the dichotomy of idea/expression is a very hard concept6. The copyright comes to existence automatically because when any formality is included then it becomes a violation of Berne Convention7. The incorporeal right found under the copyright law which is a distinct object property form as it is an intangible form of property. The copyright Act gives permission to the economic rights to the owner as well as performance and moral rights. The most important concept dealt with the copyright law is the balancing of ownership rights and the public rights to use the copyright information. Since Fred and Jim are the owners of the music, they posses the copyright as it protects their ideas of coming up with and singing their own composition. Fred also enjoys this right when it comes to his computer game. It was ideas that made him compose and implement the computer game, therefore he has all that it takes to enjoy the fruits of his ideas8. The copyright ensures that these great ideas are not violated at all. The works dealt with by the copyright laws are the traditional types of subject matter that are protected because of the technological advances over the last 80 year. They contain the original work thus they must be protected though according to the subject matter9. The connection between copyright and Australia is through the Act provision that applies in relation to dramatic, literary, musical or artistic work or the first published edition or cinematograph film made or initially published in Australia or first published in Berne Convention country, a WTO country or a UCC country being a foreign work or subject matter10. The copyright law also deals with the licensing issues where it incorporates both the compulsory licensing and the implied licensing11. They also cover the copyright remedy which involves the remedies, assessment of damages, additional damages, criminal offenses and other major issues12. The laws also deal with the copyright through assignments, formalities and licensing. Other types of intellectual rights include the resale royalty or the droit de suite which is a right to follow. It is employed by the artists in order to enjoy their shares in the profits made when their works have been resold. In Australia such a right did not exist and the artists used to suffer losses until this royalty right came to effect in 201013.Fred and Jim are among the people who suffered such losses but now that they have been implemented, they will enjoy the fruits of their work. Note that this will only work out to them when they realize the right and stay under it. Another branch of copyright is the crown copyright, which incorporates a number of provisions in use and copyright ownership14. Under the crown ownership, the crown under its control and directions will own the copyright in any original work. Under the same directions, the crown will own the copyright works published in Australia. Note that the provisions related to copyright duration are different15. Therefore, it is important for Fred and Jim to acquire the crown copyright because they will be able to control and direct any concept that deals with their artistic works. The crown will as well provide a compulsory license to reproduce an Act’s copy, order or judgment. Fred should thus benefit from resale royalty should someone sell copies of his music or computer game and make profits16. On the other hand, Fred had infringed the copyright of the Batman company when he used their logo in his music as well as the in the computer game. This is because he did not own the license of the logo that belonged to the Batman organization that came up with it and have the ownership license. Therefore, in as much as Fred loves Batman, he needs to stop using the logo and come up with his in order to enjoy the fruits of his work. Most people were not interested in most of his works because he had infringed the intellectual property of the Batman Company. The name of his CD ‘Barking Moonbat’ also violated the copyright of the Batman Company because other than using the logo, it also used the ‘bat’ name which was not his original invention or creation17. It was wrong because the name had been used earlier on by the batman company. Therefore, he needs to change both the logo and the name of his CD in order to enjoy the fruits of his works. Performance rights Fred and Jim had performance right over the music that they performed together in the local clubs. The performance rights are found in Part XIA of the trademark Act and they are minimal than the copyright. However, its basic definition is in section 248A. It includes performance of a musical work, dramatic work including the use of puppets performance. Others are reciting, reading, delivering a literary work, performance dance, folklore expression performance among others. The performance is not supposed to be for audience alone because the news presentation and participation in a sport are performances as well. Therefore, the performance rights given are to prevent any unauthorized use meaning that it is impossible for any unauthorized user to communicate or record a performance live to the audience. In the case of Fred and Jim, they possessed this right because they were the original authors of their music and they need to use the right to protect their music against any unauthorized performers of their music18. But it should be noted that once the author has authorized other parties to record, the author has no more controlling rights to the changes made to his or her performance work. This now applies to Fred who decided to collaborate with Jim. He should not that the music now belongs to both of them and he does not have the controlling rights all by himself but as a team. The performers are also given a chance to sound recording rights in their performance by the Australia US Free Trade Agreement and the sound recording is of a live performance. In live performance, any contributor to the performance sounds including the conductor is a performer. Sometimes there are more than one owner especially in music where the artist collaborate, the work is then owned as tenants with equal shares. Therefore, Fred and Jim have equal shares in their music. In general, the performance rights govern the artists and their works where they cannot be violated or their works stolen by other users19. Although they did not have access to professional recording companies and broadcasters, the performance right still govern them when they perform at the local clubs. The rights protect them and ensure they rip the fruits of their performance works. The performance rights that Fred had prevent any other person or party from performing their music anywhere without their consent. Advice to Wilma Wilma is a woman who has very good business ideas that can be implemented and see her far in terms of competitiveness in the business market. She can do well if she considers all the relevant implications of business brought out by the intellectual property especially the trademark acts. To understand this concept well, Wilma needs to know all that the trademark pertains. All the products in the market are distinguished by the different trademarks they have20. If she does not considers the trademark concept then it means that her products will be of less value in terms of sale and even the registration process to the market field which might give her lots of problems. Therefore, knowledge of trademark rules is required in order to understand and know what Wilma needs to do and what she ought not to do. Trademarks Trademark refers to the sign used or intended to be used to differentiate goods or services in the course of trade. This definition comprises of the four elements under the trademarks act of 1995. These elements are; sign, use or intended to be used, different goods or services, and the course of trade21. The sign has a very wide meaning, which comprises of words, names, any letter, signature, device, brand, numeral, color, label, heading, sound, ticket, shape, aspect of packaging among others. This is the sixth act in the 1995 trademarks act. The signs can be either traditional signs and or modern, which are as well known as new signs. In order for Wilma to come up with the ten different flavors for her edible pen product, she has to consider all this signs and their implications. The traditional signs include the word, name like IBM, St. George Bank and Microsoft, signature such as Paloma Picasso, device like Nike, Swoosh, Coke, Dynamic Ribbon, Pizza among others22. The modern or new sign include the shape such as Coke, contour bottle, Kit Kat, color like pink Batts, tiffany blue, whiskers purple and BP green disputes. sound like MGM lion roar, Tarzan yodel, Warner bros, Merrie Melodies, Dolmio Waltz, Toyota-oh what a feeling, Scent like the beer scented darts, plum-scented thread, rose-scented car tyres, lemon-scented photocopier toner, grape and strawberry scented petrol among others23. Wilma’s edible pen product fits well in this category thus she needs to work on it to acquire the trademark in order to be competent enough in the market field. The other element is the used or intended to be used where the public policy concerns motive the use other than hoarding. This is because if not the trademark used can be expunged from register24. For example, a ghost mark cannot be registered to protect unregistable mark image. It must employ the mark without substantial additions or alterations for example the ugg boot dispute. In order to differentiate from the goods and services, there must be the signifier not the thing, a sign not the sign’s identified product25. Therefore, Wilma needs to work on her idea and make sure it is not expunged from the register when she implements it. In order to distinguish the goods from services, a person must be separate from the goods and services themselves. Collective trademark refers to the sign that represents good/services provided in the trade course by certain association members to differentiate them from the goods/services by non-association members. Therefore, the collective trademark contains registration by association, shows membership and has the principle that an association member does not have the right to prevent another member from using the mark29. If Wilma decides to partner with someone or a group of people as she had suggested, then it means she will have to acquire a collective trademark that will govern their product as an association for all members. The certification trademark on the other hand is a sign that differentiates goods or services given in trade course and certified by the certification mark owner concerning accuracy, quality or some other characteristics including the material or mode of manufacture30. Note that the certification mark user does not necessarily need to be a member for example the Australian Heart Foundation31. When focus on the course of trade as a trademark act, it talks of the broad interpretation of course of trade as interpreted by other areas of the law such the trade practice act. However, the definition gives some uses outside the commerce. Rights of trademark holder The trademark holder has the right to use the mark and authorize others to use it but it should be in relation to the goods or services in respect to the particular act that the mark is registered. The holder also has the right to acquire relief if the mark has been fringed under the act32. The ownership of the trade mark refers to the exploitation of mark for a specific period initially 10 years but can be renewed for further terms. There is no provision for experimental use as it is done in the patents. There is no prior art/use/disclosure restriction as per patent. Under the property, it should be noted that mark is property because it can be enforced in the same way as equities in any other individual property26. The mark can as well be assigned and jointly owned. Wilma is able to be protected by all this rights if she becomes a trademark holder where she is capable of using the mark to authorize any action related to her product for example, changing of the shape or name or even the flavor of her edible pen. This is because she is the owner and because she has the trademark, she can do all she wishes. The register The known registered bodies in Australia are the Intellectual property of Australia, which comprises of the national government agency and the counterpart of USPTO. The IP Australia has the statutory powers and it maintains the national register as well as looking at the role played by the specialist staff27. The national register is established under section 207 of the 1995 Act, it is analogous to patent register and has a significance of seeing what is registered. The registration can as well be publicly accessible as per section 209 of the Act, searchable online-ATMOSS on internet and the registration is fee-based either during application or renewal of membership28. It is also monopoly minimal through employing the goods and services classes where there is 34 classes of goods and 11 classes of services all based on the classification system of NICE International. There is the employment of non-confusing scope of same word by different owners in different classes as well for example, Smiths shoes, Smiths Crisps, Smiths books. Note that some classes are very broad29. Wilma’s product also fits in these classes meaning that she needs to register it to the one of the registered bodies in order to enjoy the results of her big ideas. Some examples of this classes include the chemicals, inc. unprocessed artificial resins and manures, paints, varnishes, lacquers; pharmaceutical and veterinary preparations, sanitary preparations for medical purposes; plaster, materials for dressings; substances adapted for medical use; preparations for vermin destruction; fungicides, herbicides among others30. Another class is the hand tools and implements (hand-operated); cutlery; side arms; razors. Also the scientific, surveying, nautical, cinematographic, photographic, optical, weighing, measuring, checking or supervising, live-saving and teaching apparatus and instruments among others31. Moreover, there is the vehicles; apparatus for locomotion by land, water or air; the musical instruments, clothing, footwear, headgear; games and playthings; gymnastic and sporting articles absent in other classes; lace and embroidery, ribbons and braid; education; training, entertainment; sports and cultural activities39. The registration process In order to get registered, Wilma needs to follow the full registration process that will make her acquire the trademark. The registration process begins with the eligibility to apply for natural and legal individual. The person then takes the application form which has specific requirement like description of mark and contact details32. Then the registrar’s delegates (the IP Australian staff) examines the application form. After looking at it they either approve it or reject it according to the requirement specification included in the form. When approved, the name is published through the register and the journal. Note that the registration can be opposed and this is a significance of the publication process33. The application has to focus on the class, registrant and mark identification where the specific requirements are described in detail in Australia Trade Mark Examiners Manual. The mark description involves searchable text and graphics. The sound mark details might involve text and recordings as well as musical notation34. The scent description is often broad as it contains the strong smell of bitter beer applied to the flights of darts. This process is very crucial for Wilma as it works as per the international business laws. The registration requirements Before undergoing the registration process, Wilma has to have some requirements that will see her through efficiently. Distinctiveness refers to the core attribute of any mark that is based on the mark protection rationale43. This is because the application may be rejected where the trademark fails to differentiate between goods and services. The major type of distinctiveness is the inherent distinctiveness that shows different evident at a glance for example, Exxon instead of Smith. It sometimes combines with other circumstances like the use of special font, color, associated graphic. Some other signs are not inherently adapted to differentiate especially when used to indicate the kind, quantity, quality, value, origins, intended purpose, the time of rendering of goods or services35. Since Wilma is the owner of the product, she needs to work on the colors of the flavors, the shape of the edible pen as well as the quality and value of the product. The idea of coming up with ten different flavor is very good but the color should not be same for all of them as she suggests, they should be as well different according to the flavors. The inherent distinctiveness refers to invented words or the ordinary words represented in a unique way. In HCA for instance, the only question that brought argument was whether the deputy registrar was okay to say that the word ‘Rohoe’ was an invented word in order to be registered under the Trade Mark Act. Under shapes, the respondent is a wholesaler that imports and supplies a cola flavored drink among other products36. The confectionary is shaped like the coke contour bottle, when fresh its soft and gelatinous and lies curled or rolled up its container. Other products that have acquired the distinctiveness shapes include the Kit Kat, the bug-shaped candy among others37. Wilma needs to stop the idea that she will use the ‘M’ logo as it is used by the McDonald fast food outlet, the copying idea violets the copyright laws and infringes the intellectual property. Therefore, she needs to come up with her own logo that will help her be competitive enough in the market field. Therefore, Wilma needs to understand this concept and apply all that the trademark pertains. Conclusion Intellectual property is the creations of the mind, which include the inventions, artistic works and literary works, and images, symbols, names and designs used in commerce. Fred’s composition in form of the music that he recorded with Jim is an example of Intellectual property38. It is because they are the owners of the music and thus they need to be protected by all the intellectual property rights. Wilma on the other hand is an inventor of a new product in the market. she needs to follow all the intellectual property concepts outlined under the trademark in order to get running in the business field and be competent as well. Works cited Australia [2000] FCA 876 Mayne Industries v Advanced Engineering Australian Wine & Brandy Corporation Amendment Act 1993 (Cth) Burger King Corporation v Registrar of Trade Marks Burger King Corporation v Registrar of Trade Marks (1973) 128 CLR 417 Birgitte Andersen. "'Intellectual Property Right' Or 'Intellectual Monopoly Privilege: Which One Should Patent Analysts Focus On?" CONFERÊNCIA INTERNACIONAL SOBRE SISTEMAS DE INOVAÇÃO E ESTRATÉGIAS DE DESENVOLVIMENTO PARA O TERCEIRO MILÊNIO. Nov 2003 Campomar Sociedad Limitada v Nike (2000) 202 CLR 45 – Nike perfume (& bleach!) v Nike Coca Cola v All Fect Distributors (1999) 47IPR 481 Deckers Outdoor Corporation v B&B McDougal Deckers Outdoor Corporation Inc. v Dennis Wharton, "MPAA's Rebel With Cause Fights for Copyright Coin," Variety (August 3, 1992), Vol. 348, No. 2, p. 18. Farley (No 7) [2010] FCA 560 Philips Electronics v Remington Products " Group [2008] FCA 27 Forties" (Re Appn by David Fraser McManamey (1989) 16 IPR 582 Howard Auto-Cultivators Ltd v Webb Industries (1946) 72 CLR 175 Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273 Mark Foys Ltd v Davies Coop (1956) 95 CLR 190„Tub Happy Case‟ Martin G, Sorenson C and Faunce TA. Balancing intellectual monopoly privileges and the need for essential medicines Globalization and Health 2007, 3:4doi:10.1186/1744-8603-3-4. http://www.globalizationandhealth.com/content/3/1/4 "Balancing the need to protect the intellectual property rights (IPRs) Mars Australia Pty Ltd v Société des Produits Nestlé SA [2010] FCA 639 Oxford University Press v Registrar of Trade Marks Shoes Societe Des Produits Nestle S.A. v Aldi Stores (A Limited Partnership) [2010] FCA 218 Wella Aktiengesellschaft v Registrar of Trade Marksn (1995) 33 IPR 374 Read More