The intellectual property law is the law based on the rules and regulations to protect anything that has been invented or created by any person. Intellectual property rights deal with the rights that give a person protection against the creation he or she has done. These are the legal rights that ensure that the creation is not replicated without getting permission from the creator. If these rights got infringed then the creator can claim the legal right against the third party. The intellectual property rights cover four constraints the first one is patent, the second is copyright, the third is trademarks and the last one is related to industrial design. In this report, the application of trademark and design law will be discussed. Additionally, the infringement of these two forms of intellectual property will be highlighted.
The regime of trademarks in the UK is predominantly governed by the Trade Mark Act 1994 in which section 1 defines the trademark. According to this section, the trademark is any sign which can be graphically represented in order to distinguish goods from one undertaking from the other. For instance, IKEA tried to register its distinctive colour scheme but got refused due to a lack of explanation of the arrangement of colours. Thus it specifies that nothing can be considered under trademark if it is not graphically represented. The trademark is only for goods and services. For instance, DOUBLEMINT was refused to be a trademark as its meaning was descriptive in nature. Thus a trademark must be distinctive in nature.
The trademark is infringed in cases where the sign used by the infringer is the same as the original sign and used for the same purpose that is either for identical goods or services or for any other goods or services. Additionally, in order to take unfair advantage or to infringe the character or reputation of the trade the sign used will amount to infringement. There are many terms and symbols that are not registered in some countries for instance emblems, flags, royal insignia, and the Olympic Games rings. Moreover, the marks that describe the origin of the product in the country and obscene marks are unregistered. The registration of the marks is done through UK Intellectual Property Office based on their distinctiveness.
The unauthorized use of identical and similar trademarks leads to infringement of the trademark. The registration of the UK trademark is infringed in the acts where-
The trademark has been affixed to the goods and services or for the packing. In case of sale of the goods or supply of services leads to infringement. Import and export of goods under the trademark as well as the use of the trademark for promotions or in advertising lead to registration infringement. However, if a registered Trade Mark relied upon in an infringement case is not utilized within five years of its registration; Claimants may be vulnerable to a counter-claim. In case of a claim that has been registered in the court demands proof of use during the infringement proceedings, submission of no or insufficient evidence will lead to entire or partial removal of the trademark from the register. This also leads to the elimination of the rights of the claimant which he or she possesses at the early stages. The first thing that the client needs to do is to write a Letter Before Action stating the acts upon which complaints have been made as well as ceasing the use of the infringed trademark. This letter restrains the defendant not to carrying out the acts that interfere with the trademarks. The advantage of this letter is to initiate communication between the parties which might lead to an amicable resolution. In order to avoid infringement, the party must explore whether the proposed trademark is already registered or not. Besides thus unregistered use of similar trademarks must be investigated.
Another type of intellectual property is design. The relevant law related to design in the UK is the Registered Design Act 1949 as well as the Copyright, Designs, and Patents Act 1988. The application of the design law is to protect the original characteristics of the product or article that helps to form the appearance of that product or article. The protection of functionality of the product is protected in the patent law, not in design law. In the UK there are registered as well as unregistered design rights. The qualifying people creating a design as well as the design which is put in a qualifying country first is covered under unregistered design right. The registered design protects the appearance of the whole or part of the product, for instance, the contours, lines, shape, colours texture, materials, and ornamentations and it must be original. Thus, if the design is not original as well as if it does not have any individual feature then it will not be registered. Moreover, if the features of the product are dependent upon its technical functions and if the aspect of the product’s look that must be recreated in its precise shape and proportions in order for the design to be included in the product will not be registered as it will be recognized as contrary to the public policy or against the moral principles. The design is possibly represented in the form of photographs, line drawings, computer Aided Design (CAD). In order to apply for the registration of the design, representation of the design, description of a feature of the product, as well as name and address of the applicant are required.
The design application cannot be opposed by a third party, unlike the trademark application. The design in the UK can be enforced against the alleged infringer in the High Court, Intellectual Property Enterprise Court (IPEC), or county courts. The design right also gets infringed when it is being reproduced by the third party in the case of the registered design. However, in case of an unregistered design, the creator of the design has to prove that the design has been copied. After registering the design it has been clearly stated that the owner of the design has the monopoly right over it. This makes the valid ground for the creator of the design to file a complaint in the court against the third party who knowingly or unknowingly tends to produce products that have the elements of the registered design. After the registration of the design instead of showing that the design is copied by the third party, it is required by the creator of the design about the similarity between the copied design and the original one. If the design gets copied then two types of injunctions can be imposed upon that are preliminary or interim injunctions or final injunctions. In order to get a preliminary injunction on the product, the court has to be fully satisfied with some points under trial. For instance, the court has to see that if the defendant continues to do these activities it will cause irreparable harm to the claimant, expediency favours the permission for preliminary injunction then only the court will pass the interim injunction order. There are some exceptional cases when the court will order the final injunction as compared to the interim injunctions.
Conclusion
In the end, it can be concluded that the framework established for the processing of the protection of intellectual property is regulatory and thus the availability of the perfect system is quite difficult. In the case of property rights, there will always be complications and troubles in the process of regulation. In order to protect unique and different constraints of property law different legislation are made which works for the protection of particular type of intellectual property. It is sometimes very difficult to protect and list the product or object on the basis of infringement that occurred under any specific law. For instance, in the case of fabric, it is difficult to identify the flaws, as well as to compare and contrast the systems based on the situation of the creator. Thus the proper analysis is required to list the products which are being infringed in a particular category.
Articles
Arning C, ‘Soft Power, Ideology And Symbolic Manipulation In Summer Olympic Games Opening Ceremonies: A Semiotic Analysis.’ (2013) 23 Social Semiotics
Camesasca P and others, ‘Injunctions For Standard-Essential Patents: Justice Is Not Blind.’ (2013) 9 Journal of Competition Law & Economics
Dinwoodie G, ‘Secondary Liability For Online Trademark Infringement: The International Landscape.’ (2013) 37 Colum. JL & Arts
Books
Liu K, Annotated Leading Trademark Cases In Major Asian Jurisdictions. (Routledge 2019)
Visser D, Trade Mark Case Law CJEU (DeLex 2014)
Websites
‘Defend Your Intellectual Property’ (UK legislation, 2022) <https://www.gov.uk/defend-your-intellectual-property/take-legal-action> accessed 31 March 2022
Helmers C, Lefouili Y, and McDonagh L, ‘Evaluation Of The Reforms Of The Intellectual Property Enterprise Court 2010-2013’ (City university of London, 2015) <https://openaccess.city.ac.uk/id/eprint/12600/1/Evaluation_of_the_Reforms_of_the_Intellectual_Property_Enterprise_Court_2010-2013.pdf> accessed 31 March 2022
‘How Your Unregistered Designs Are Protected’ (UK Government, 2022) <https://www.gov.uk/unregistered-designs> accessed 31 March 2022
‘Registered Designs Act 1949’ (UK Legislation, 2022) <https://www.legislation.gov.uk/ukpga/Geo6/12-13-14/88> accessed 31 March 2022
‘Trade Marks Act 1994’ (United Kingdom Legislation, 2022) <https://www.legislation.gov.uk/ukpga/1994/26/contents> accessed 31 March 2022
‘What Are Intellectual Property Rights?’ (WTO, 2022) <https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm> accessed 31 March 2022
‘What Is Intellectual Property?’ (WIPO, 2022) <https://www.wipo.int/about-ip/en/> accessed 31 March 2022
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