Ch 18 Intellectual Property

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Management and Organizational Studies
Management and Organizational Studies 2275A/B
Frederick King

Intellectual Property 12/7/2012 1:53:00 PM Chapter 18 Creation of Intellectual Property Rights  Intellectual property – the results of creative processes o Ideas, formulas, schemes, trademarks, patent, copyright, industrial design, etc.  Patents o A monopoly to make, use and sell an invention o Any new and useful art, process, machine, manufacture or composition of matter or any new improvement of them o Common exclusions from patent protection  Things that receive exclusive protection under other areas of the law (e.g. computer programs, because they are protected under copyright)  Things that do not meet the definition of a patent (e.g. scientific principles, natural phenomena and abstract discoveries are not inventions)  Things that are not patentable for policy reasons (e.g. methods of surgical or medical treatment) o Requirement for patentability  Patents will be granted for inventions that are new, useful and unobvious  New – any public disclosure, public use or sale of the invention prior to filing for a patent renders the invention old and unpatentable (e.g. displaying a product at a trade show or making brochures is a bar to obtaining a patent)  Useful – an invention must solve some practical problem and it must actually work (e.g. a perpetual motion machine lacks practicality)  Unobvious – there must be some ingenuity involved, its not the obvious next step in the state of the knowledge, it involves an inventive step o Patent protection and application  The patent regime is based on a first-to-file basis  Contracts with employees should consider the ownership of all intellectual property including inventions produced in the course of employment  Patent agent – a professional trained in patent law who assists in the preparation of a patent application  Specifications – the description of an invention  Claims – the exclusive rights of the patent holder, explains to the reader what they can’t do prior to expiry  Patents give the inventor the right to exclude others from making, selling or using the invention for a period of 20 years from the date of filing the application  Patents exist only the country in which they are granted  Industrial designs o Provides protection for the appearance of mass-produced useful articles or objects (numbering more than 50) o Industrial design – the visual features of shape, configuration, pattern, ornamentation or a combination applied to a finished product o Requirements for registration  Must be original and novel, however the standard is lower than that of inventiveness found in patents o Registration process and application  An application drafted by a patent agent must be submitted to the industrial design office  The designer is the owner unless the design was ordered and paid for by another  Application consists of a written description and a photo  Gives the owner exclusive rights to make, import or sell any article with the design and stop competitors from making similar designs  Lasts for 10 years  If a product is marked that it is registered, a court may award monetary damages for infringement  Trademarks o A word, symbol, design or combination used to distinguish the source of goods or services, can be:  A word or words  Slogan  Design (McDonald's golden arches)  Series of letters (BMW)  Numbers (6/49 lottery)  Distinguishing guise – a shaping of a container or they way a product is wrapped (Coca-Cola bottles) o Colours, smells and sounds are not registrable o Adoption of trademarks may prevent the use of an identical trade name, and vice versa o Trade names – the name under which a sole proprietorship, partnership or corporation does business o Common law trademarks  Unregistered trademarks  Common law trademarks come into existence when a business simply adopts and uses it  Infringements by a competitor using the same or similar trademark can be addressed through the tort of passing off  Only has rights in the geographical area in which its reputation is known, not country wide o Trademark and domain names  Domain name – website address  Domain names are controlled by various organizations that act as registrars varying from country to country  Registrars issue names on a first-come, first- served basis  Cyber-squatting – the bad-faith practice of registering trademarks or trade names of others as domain names for the purpose of selling the domain name to the rightful owner or preventing the rightful owner from having the domain name o Requirements for registration  The applicant must demonstrate that he has title to the trademark, the trademark is distinctive and the trademark is registrable  Title – may only register a title one owns  Ownership is not established by inventing or selecting a mark, it comes from:  Use of the trademark  Filing an application to register  Making it known in Canada  Deemed to be in use in Canada is the trademark is on the goods or packaging at the time of business or displayed in the advertising of goods  A trademark can be registered if it is not yet in use, as long as use begins before the registration is actually issued  Distinctiveness  It must actually distinguish the goods or services in association with it  Invented words are ideal candidates rather than descriptive words (Lego versus shiny)  Registrability  The trademark must not be:  Primarily the name or surname of someone living or has died in the past 30 years  Descriptive of the character or quality of the wares or services, or their place of origin  Deceptively misdescriptive of the character or quality of the wares or services, or their place of origin  The name in any language of any ware or service with which it is used or proposed to be used  Confusing with regard to another registered trademark (e.g. “Devlon” for hair products) o Registration process and protection  The first person who makes a trademark known in Canada is entitled to registration  If one hasn’t been used yet, the first to file a trademark application is entitled to registration  A search is performed in the trademarks office database to see if similar trademarks already exist  A trademark registration gives the owner the right to use the trademark in association with the wares and services specified in the registration  Provides protection across Canada for 15 years and can be renewed  Copyright o The right to prevent others from co
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