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Chapter 22 Intellectual Property.docx

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Chapter 22 Intellectual Property  The Sales of Goods Act doe NOT apply to Intangible property  4 main types of „intellectual property‟ 1) Trademarks 2) Copy Rights 3) Patents 4) Industrial Design 1) Trademarks  Trademarks are governed by both common law and by statue a) Definition of a Trademark (4 types)  Both common law and statute agree to definitions  There are for types of trademarks 1) Trademark – a mark that is used in order to distinguish a persons product or service from another  Generally a visual characteristic ( Nike “swoosh” ) 2) A Certification Mark  A certification mark is basically a mark that serves to identify a product that conforms to a certain standard - to tell a consumer it has been approved by someone‟s standards  “Good House Keeping Seal of Approval”, Oprah‟s Book mark, Construction Standards Association 3) A distinguishing Guise  The way of dressing something – usually the way a product is packaged  Such as the Coke bottle or the Tolberone Bar shape 4) A Proposal Trademark  If an owner of a trademark proposes to registrar the trademark – then it has trademark protection b) Trademarks at Common Law 1) Passing Off  Passing Off is the tort of misrepresentation ones product as your own product  For example, misrepresenting your product as Cokes – because you are using their defining trademarks  When passing off the person must want to intentionally misrepresent the product to trick the consumer to believe that it is in fact the product you are passing off  The problem with passing off is that big firms thrive on consistency – people passing off products could ruin their reputation – every time someone opens a bottle of coke they know it is going to taste exactly the same every time – consistency!- passing off ruins this  You sue for the tort of „Passing Off‟ in common law 4 things you need to prove to sue for „Passing Off‟ 1) The plaintiffs Goods or Services enjoy the reputation that it is some value worth protecting – if no reputation then nothing to protect 2) The Defendant has misrepresented its goods as those of the Plaintiff 3) There was actual or likely confusion in the publics mind b/w defendants good and the plaintiffs 4) The plaintiff has to prove that they actually sustained damages – loss of sales, loss of reputation etc. – no damages no suit! ii) Business Names  Under common law all business names are protected  Also the Ontario government requires that all business names be registrar under the „Business Names Act‟ – all the act does is basically allows the business to carry on in business If we have trademarks protected under common law – why do we need the Trademarks Act in Statue? c) Trademarks under the Federal Trademarks Act  Trademarks under statue or pretty much the same as under common law  Not completely necessary – double protection i) Registration under the Act  It takes about a year to get a trademark registered – must apply to the trademark act to see if any similar trademark exist or not  When registered the it last for 15 years – can renew if you want ii) Rights Obtained as a Result of Registration 1) exclusively use trademark in Canada 2) right to prohibit others to use the trademark 3) right to prohibit others using similar trademark that would damage reputation iii) Protection Obtained as a Result of Registration  Very similar to common law protection  Protection against people passing off same or similar trademark  Protection against people using same or similar trademark So why Registration?  One benefit to registration Act is that the trademark has rights and protection IN ALL AREAS OF CANADA – Federal Protection  Trademark would be better with double protection  Person can sue under infringement of the Act + sue under common law tort 2. Copy Right  Copy Rights are all statue driven – all federal a) The Nature of a Copy Right  The „Copy Right Act‟ defines copy right as any original literary, dramatic, musical and artistic work  A copy right does not arise unless something has been created – no copy right is an idea – a copy right only arises once you have something tangible i) Literary Works  Writing, printing, maps, sketches – anything committed to paper  Machine readable or compute
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