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Final

ACTG 2P40 Final: Exam Review

7 Pages
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Department
Accounting
Course Code
ACTG 2P40
Professor
Katharine Book

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Intellectual Property
Trademark
o!an identifiable feature that is used by a person for the purpose of distinguishing his goods or services
from those of others
1)!Certification mark
o!a special type of trademark used to identify goods or services that conform to a particular
standard.
o!the owner of the mark may register it or license its use to other persons whose goods, services, or
business meet the defined standards.
2)!Distinguishing guise
o!the shaping of goods or their containers, or a distinctive mode of wrapping or packaging.
The Tort of Passing-off
o!The common law protects a trademark owner through the tort of passing-off. A person commits the tort of
passing-off when he misrepresents goods, services, or a business in such a way as to deceive the public into
believing that those things are the goods, services, or business of some other person, thereby causing
damage to the latter. The main purpose of a passing-off action is to protect the trademark owner from the
sale of counterfeit goods, which is actually theft of goodwill.
Goodwill
o!the benefit and advantage of the good name, reputation, and connections of a business.
Requirements / Elements of Passing-off
1.!The plaintiff’s goods, services, or business must enjoy a reputation that is of some value worth protecting.
2.!The defendant must have misrepresented its goods, service, or business as those of the plaintiff.
3.!There must either be actual confusion or a likelihood of confusion in the public’s mind between the
goods, services, or business of the plaintiff and those produced or licensed by the defendant.
4.!The plaintiff must suffer or be likely to suffer damage in consequence of the passing-off.
Rights Obtained by Registration
o!Section 19 of the Act gives the owner of a valid registered trademark the exclusive right to its use throughout
Canada in respect of the goods and services for which it was registered.
o!No unauthorized person may then sell, distribute, or advertise any goods or services in association with a
confusing trademark or trade name, or otherwise use the mark in a manner that is likely to have the effect of
depreciating the value of the goodwill attached to it.
o!Registration provides a complete defence to a passing-off action. If another person claims that he had
already been using the mark, or a deceptively similar mark, before the registration, his only recourse is to
attack the validity of the registration.
o!If, after a trademark has been registered, it is discovered that some other person had been using a similar
trademark before the registered owner first used it, the first user may bring proceedings to have the
registration “expunged”that is, removed.
Remedies
o!The remedies that either court may grant are almost the same. If there is injury to the goodwill of the owner,
then damages may be awarded.
o!If the defendant has profited from the infringement, an account of profits may be ordered.
o!The defendant may be restrained from further infringement by an injunction and may be required to deliver
up or dispose of infringing materials.
o!The court may also order the defendant to allow the plaintiff to search for and seize offending wares and
relevant books and records, and, in a statutory action, may impose a ban upon further imports of offending
products.
Copyright
o!Copyright law balances public access to creations of art and intellect with fair compensation for creators.
Unlike trademarks, copyright is entirely the creation of statute. There is no common law action for
infringement of copyright. Copyright law first developed to protect the written word after the invention of the
printing press; over time its scope grew to cover drawings, paintings, movies, and musical scores. Current
rules address radio and television broadcasting, computer software, digital copying, and the internet.
Rights of Copyright Owners
1.!the right to produce or reproduce the work in question, or any substantial part of it, in any material form.
2.!the right to perform or deliver the work in public.
3.!the right to publish an unpublished work.
royalty payments
o!fees paid for permission to use another person’s copyrighted material.
Rights Protected by Copyrights
o!the right to translate the work
o!the right to convert the work from one form into another
o!the right to make a recording or film of the work
o!the right to communicate the work to the public by telecommunication
o!the right to exhibit the work in public
o!the right to authorize any of the above
moral rights
o!the non-transferable rights of an author or creator to prevent a work from being distorted or misused.
Morals Rights include:
o!the right to integrity of the work
o!the right to prevent distortion or mutilation of the work
o!the right to prevent it from being used in association with some product, service, cause, or institution;
o!and where the work is copied, published, or performed, the right to be associated with the work as
author or to remain anonymous.
Remedies for Infringement
1.!damages for profit or income lost by the owner, or for conversion of the owner’s property
2.!accounting for profits made by the defendant as a result of the infringement
3.!injunction to restrain the defendant from further infringement and to require the surrender of any
offending copies
Patents
o!An inventor or the legal representative of an inventor may obtain a patent that gives the applicant a
monopoly over the invention for a period of 20 years. This secures the “exclusive right, privilege and
liberty of making, constructing and using the invention and selling it to others to be used”.

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Description
Intellectual Property Trademark o an identifiable feature that is used by a person for the purpose of distinguishing his goods or services from those of others 1) Certification mark o a special type of trademark used to identify goods or se rvices that conform to a particular standard. o the owner of the mark may register it or license its use to other persons whose goods, services, or business meet the defined standards. 2) Distinguishing guise o the shaping of goods or their containers, or a distinctive mode of wrapping or packaging . The Tort of Passingoff o The common law protects a trademark owner through the tort of passing off. A person commits the to rt of passingoff when he misrepresents goods, services, or a business in such a way as to deceive the public into believing that those things are the goods, services, or business of some other person, thereby causing damage to the latter. The main purpose of a passingoff action is to protect the trademark owner from the sale of counterfeit goods, which is actually theft of goodwill. Goodwill o the benefit and advantage of the good name, reputation, and connections of a business . Requirements Elements of Passing off 1. The plaintiffs goods, services, or business must enjoy a reputation that is of some value worth protecting. 2. The defendant must have misrepresented its goods, service, or business as those of the plaintiff. 3. There must either be actual confusion or a likelihood of confus ion in the publics mind between the goods, services, or business of the plaintiff and those produced or licensed by the defendant. 4. The plaintiff must suffer or be likely to suffer damage in consequence of the passing off. Rights Obtained by Registration o Section 19 of the Act gives the owner of a valid registered trademark the exclusive right to its use throughout Canada in respect of the goods and services for which it was registered. o No unauthorized person may then sell, distribute, or advertise any goods or services in associatio n with a confusing trademark or trade name , or otherwise use the mark in a manner that is likely to have the effect of depreciating the value of the goodwill attached to it . o Registration provides a complete defence to a passing off action. If another person claims that he had already been using the mark, or a deceptively similar mark, before the registration, his only recourse is to attack the validity of the registration. o If, after a trademark has been registered, it is disc overed that some other person had been using a similar trademark before the registered owner first used it, the first user may bring proceedings to have the registration expungedthat is, removed. Remedies o The remedies that either court may grant are almost the same. If there is injury to the goodwill of the owner , then damages may be awarded. o If the defendant has profited from the infringement, an account of profits may be ordered. o The defendant may be restrained from further infringement by an i njunction and may be required to deliver up or dispose of infringing materials.
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