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Running head: INTELLECTUAL PROPERTY

ASSIGNMENT - GROUP 6
INTELLECTUAL PROPERTY

. A, B, C, D and E are friends who enrolled in a university course to study International


Business Law. The textbook required for the course costs $50, which the five friends agree

is expensive. They agree to chip in $10 each and buy one copy from the bookstore. They then
take a copy to the $15 per copy. Then they return the book to the bookstore and get a refund of
their original purchase price. Have the five students done anything wrong? If so, what? Fully
explain.

. Barley Beer Co. owns the mark Super Suds for use on the bottle and canned beer in
Country X. Can Barley Beer Co register the above marks in Country X?

Assuming that Barley Beer Co successfully registers the above trademark but then does not use
the mark in Country X for six years. Hops Beer Co. would like to use the mark and it brings suit
in a Country X court to have Barleys trademark revoked. Will Hops succeed? Fully explain.

INTELLECTUAL PROPERTY

Group Assignment Cover Sheet


Subject Name
Lecturers Name
Title of Assignment
Class
Group Number
Student Number and
Name
Contact Number or Email
Length
Due Date
Date Submitted

BUSINESS LAW
DR. HA THI THANH BINH
GROUP 6 BUSINESS LAW CHAP 9
BL-DH40ISB-04
GROUP 6
1. NGUYN TRN QU TRM
2. TRNG TR TN
3. NGUYN TH THY TIN
tramvet@gmail.com
2761 Words
June 3rd, 2016
June 3rd, 2016

31141021027
31141021800
31141022769

Declaration:
I hold a copy of this assignment if the original is lost or damaged.
I hereby certify that no part of this assignment or product has been copied from any other
students work or from any other
source except where due acknowledgement is made in
the assignment.
No part of the assignment/product has been written/produced for me by any other person
except where collaboration has been authorised by the subject lecturer/tutor concerned.
I am aware that this work may be reproduced and submitted to plagiarism detection software
programs for the purpose of detecting possible plagiarism (which may retain a copy on its
database for future plagiarism checking)
Signature: NGUYN TRN QU TRM
Signature: TRNG TR TN
Signature: NGUYN TH THY TIN
Note: An examiner or lecturer/tutor has the right not to mark this assignment if the above
declaration has not been signed)
Mark:
Comments:

INTELLECTUAL PROPERTY

Research Report
Group 6 Business Law Chapter 9

NGUYEN TRAN QUE TRAM


TRUONG TRI TIN
NGUYEN THI THUY TIEN
BL-DH40ISB-04
June 3, 2016
Dr. HA THI THANH BINH

INTELLECTUAL PROPERTY
Tables of contents
Page
Abstract...........................................................................................................................................5
Introduction....................................................................................................................................6
Methodology...................................................................................................................................7
Intellectual Property......................................................................................................................8
First Case........................................................................................................................................9
1.
2.
3.
4.
5.

The Case
Issue
Rules
Application
Conclusion

Second Case..................................................................................................................................12
1.
2.
3.
4.
5.

The case
Issue
Rules
Application
Conclusion

References...................................................................................................................................17

INTELLECTUAL PROPERTY
Abstract
As the development of many high-tech industries in daily lives, everything starts with an idea
from the innovator who thinks differently about solving a problem, to the artist who designs
something groundbreaking, to the writer whose words give us new perspective. Innovators
should be encouraged to do new things and create with the confidence that their creativity,
knowledge and monetary investments are protected and rewarded. Unfortunately, there will
always be those who use intellectual property rights slow new creations. This research will
explain about intellectual property and how important to inventors it is.

INTELLECTUAL PROPERTY
Introduction
Intellectual property refers to rights in creations of the human mind which arise under the laws
of patents, copyrights, trademarks, trade secrets, unfair competition and related laws. Article 2
of the Convention Establishing the World Intellectual Property Organization (WIPO) defines
intellectual property as follows: Literary, artistic and scientific works; Performances of
performing artists, phonograms, and broadcasts; Inventions in all fields of human
endeavor; Scientific discoveries; Industrial designs; Trademarks, service marks, and commercial
names and designations; Protection against unfair competition; All other rights resulting from
intellectual activity in the industrial, scientific, literary or artistic fields.
This report includes two cases of The Creation of Intellectual Property Right, which usually
occur in the real life. The first case is about the Copyrights and the second will introduce you
about the Trademarks. Base on the International Law as well as the National Law of each
country we will analyze and give out solution for each case and explain to you in detail.

INTELLECTUAL PROPERTY
Methodology
Literature survey
Secondary data are collected using a range of information sources such as the Proquest Database,
verified organizational records and Internet search engines.
Data Collection and Analysis
This research use both qualitative and quantitative data. The data is collected using various
methods. To increase the familiarity with the issues, we have reviewed a wide variety of written
documentation, previous case studies, and the organization official web sites.

INTELLECTUAL PROPERTY
Intellectual Property
WIPO: World Intellectual Property Organization is the global forum for intellectual property
services, policy, information and cooperation. We are a self-funding agency of the United
Nations, with 188 member states. Its mission is to lead the development of a balanced and
effective international intellectual property (IP) system that enables innovation and creativity for
the benefit of all. Its mandate, governing bodies and procedures are set out in the WIPO
Convention, which established WIPO in 1967.
Berne Convention for the Protection of Literary and Artistic Works was adopted in 1886, deals
with the protection of works and the rights of their authors. It provides creators such as authors,
musicians, poets, painters etc. with the means to control how their works are used, by whom, and
on what terms. It is based on three basic principles and contains a series of provisions
determining the minimum protection to be granted, as well as special provisions available to
developing countries that want to make use of them.
TRIPS Agreement: The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) is an international agreement administered by the World Trade Organization (WTO) that
sets down minimum standards for many forms of intellectual property (IP) regulation as applied
to nationals of other WTO Members
Paris Convention for the Protection of Industrial Property: The Paris Convention, adopted in
1883, applies to industrial property in the widest sense, including patents, trademarks, industrial
designs, utility models, service marks, trade names, geographical indications and the repression
of unfair competition. This international agreement was the first major step taken to help creators
ensure that their intellectual works were protected in other countries.

INTELLECTUAL PROPERTY
First Case
The case:
A, B, C, D and E are friends who enrolled in a university course to study International
Business Law. The textbook required for the course costs $50, which the five friends agree is
expensive. They agree to chip in $10 each and buy one copy from the bookstore. They then take
a copy to the local Discount Copy Store and make five copies of the complete book for $15 per
copy. Then they return the book to the bookstore and get a refund of their original purchase price.
Issue:
Whether these five students are wrong or not when they take photocopies of the book and
use it, but they do not even buy one original book.
Rules:
Right of reproduction: The Berne Convention, Article 9 (1) (September 28, 1979, as
amended).
Authors of literary and artistic works protected by this Convention shall have the exclusive
right of authorizing the reproduction of these works, in any manner or form.
Right of distribution: WIPO, Article 6 (1) (December 20, 1996, as amended)
Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making
available to the public of the original and copies of their works through sale or other transfer of
ownership.
Application:

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INTELLECTUAL PROPERTY
When these five students by a original book, they do buy a copyright of the book. However, they
made photocopies of the complete book for each to use and returned the original one, therefore,
they did not buy any copyright of the book. According to The Berne Convention, Article 9 (1)
(September 28, 1979, as amended), they infringed the authors right that reproducing his or her
work in the form of papers, photocopying itself against the exclusive right of authorizing the
reproduction of these works, in any manner or form.
At the moment that five students took photocopies and then bought 5 photocopying books with a
cheaper price than the original, they are making available to the public of the original and copies
of authors works, as stated in WIPO, Article 6 (1) (December 20, 1996, as amended).
Regardless of how much they reproduced in any form, they could illegally distribute the book to
any one not just for themselves by taking more photocopy of the book.
Conclusion:
Making photocopies of an original book infringes the copyright authors right of reproduction
and distribution. Therefore, the five students should not take copies of the original book. If the
book is too expensive, they could borrow it from their seniors or the schools library, or make a
photocopy of a few pages which the professor requires them to read then they probably not
violate any laws.
Although this action is wrong, anyway, depending on each country that can have different
treatments, for example, in many countries such as Vietnam, China, Korea, , it is not important
that students use photocopying books or not. Photocopy becomes more popular because of its
convenience and economisation, especially, the copyright law here is not as strict as other
western countries laws.

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INTELLECTUAL PROPERTY

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INTELLECTUAL PROPERTY
Second Case
The case:
Barley Beer Co. owns the mark Super Suds for use on the bottle and canned beer in
Country X. Can Barley Beer Co register the above marks in Country X?
Assuming that Barley Beer Co successfully registers the above trademark but then does not
use the mark in Country X for six years. Hops Beer Co. would like to use the mark and it brings
suit in a Country X court to have Barleys trademark revoked. Will Hops succeed? Fully explain.
Issue:
Whether Barley Beer Co. can register the mark Super Suds in country X.
Whether Hops Beer Co. will succeed in bringing suit in country X to have Barleys
trademark revoked.
Rules:
Paris Convention for the Protection of Industrial Property, Article 6, 1883 (amended in 1979)
The conditions for the filing and registration of trademarks shall be determined in each
country of the Union by its domestic legislation.
However, an application for the registration of a mark filed by a national of a country of the
Union in any country of the Union may not be refused, nor may a registration be invalidated, on
the ground that filing, registration, or renewal, has not been effected in the country of origin.

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INTELLECTUAL PROPERTY
A mark duly registered in a country of the Union shall be regarded as independent of marks
registered in the other countries of the Union, including the country of origin.
Trademark Law Treaty, Article 3 (1994)
The applicant may file, instead of or in addition to the declaration of intention to use the
mark referred to in subparagraph (a) (xvii), a declaration of actual use of the mark and evidence
to that effect, as required by the law of the Contracting Party.
Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 18 (1994)
Initial registration, and each renewal of registration, of a trademark shall be for a term of no
less than seven years. The registration of a trademark shall be renewable indefinitely.
Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 19 (1994)
If use is required to maintain a registration, the registration may be cancelled only after
an uninterrupted period of at least three years of non-use, unless valid reasons based on the
existence of obstacles to such use are shown by the trademark owner. Circumstances arising
independently of the will of the owner of the trademark which constitute an obstacle to the use of
the trademark, such as import restrictions on or other government requirements for goods or
services protected by the trademark, shall be recognized as valid reasons for non-use.
Application:
Whether Barley Beer Co. can register the mark Super Suds in country X.

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INTELLECTUAL PROPERTY
Made up from the first issue, we can define that this issue has two main ideas, whether the mark
Super Suds for use on the bottle and canned beer has been registered in the Country X or it has
not.
First idea is if so resembles a mark already registered in the Patent and Trademark Office as to be
likely, when applied to the goods of applicant, to cause confusion, or cause mistake, or to
deceived, the registration would be refuse. (Ray August, 2013)
Second idea is that there have not any trademarks already registered in the Patent and Trademark
Office as to be likely (Ray August, 2013), the Barley Beer Co. can register for the mark Super
Suds consist of these two small instances.
(Article 6, Paris Convention, 1979) in the Paris Convention, the conditions for the filing and
registration of trademarks shall be determined in each country of the Union by its domestic
legislation. If both the original country of the Barley Beer Co. and Country X are members of
Paris Convention, in six months, the Barley Beer Co. can register its trademark Super Suds in
Country X as a mark duly registered in a country of the Union shall be regarded as independent
of marks registered in the other countries of the Union, including the country of origin (Article 6,
Paris Convention, 1979).
The other instance is that the Country X is not a member of Paris Convention. In this issue,
the Patent and Trademark Office of the Country X will treat the Barley Beer Co. as a foreign
company. If the trademarks are acquired by use, like Canada and the Philippines, mark can be
registered only if it has already put into use. Otherwise, the mark Super Suds can be registered
even if it has never been used in commerce.

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INTELLECTUAL PROPERTY
Whether Hops Beer Co. will succeed in bringing suit in country X to have Barleys trademark
revoked.
According to (Article 18, 1994), if the original state of Barley Beer Co. is a member of WTO, its
trademarks is protected for a term at least seven years and the mark Super Suds is to be
indefinitely renewable. Therefore, Hops cannot success in using the mark Super Suds and in
bringing suit in a Country X court to have Barleys trademark revoked.
Refer to the Trademark Law Treaty (1994), after the trademark is registered, many countries
require the holder to present proof, upon the renewal of registration, that the mark was actually
used within the country during the prior term, which is at least 7 years. Because the holder did
not present the evidence of usage at no less than three years, it cannot meet the usage
requirement of Country X and the country can allow third parties to bring actions to cancel the
trademark (Article 19, 1994). If country X set the time in which the term expires less than six
years so the Hops can success in winning the court, or else, it will lose because the mark Super
Suds is still in the time of renewal.
Conclusion:
Overall, for the first issue, Barley Beer Co. can register the mark Super Suds in country X
if they meet all the requirements of Country X for an International Trademark to apply. The
requirements are defined base on the National Law of Country X. The Paris Convention (Article
6, Paris Convention, 1979) gives the Barley Beer Co an advantage in registering if both the
Original Country of the Company and Country X are member in this Convention.
In the second issue, it will have chance for The Hops to use the mark if they can give
evidence in a Country X Court that the mark Super Suds is not used for six years to have

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INTELLECTUAL PROPERTY
Barleys trademark revoked and this time is over the present proof time that the Country X
defines. If not, the Hops have to wait until the renewal time at the end of seven years (Article 18,
1994) but the advantages is belong to the vice owner of the mark.

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INTELLECTUAL PROPERTY
REFERENCES

Article 6, Paris Convention. (1979, Septemper 28). Marks: Conditions of


Registration; Independence of Protection of Same Mark in Different Countries.
(1994). Trademark Law Treaty.
Article 18. (1994). Agreement on Trade- Related Aspects of Intellectual Property
Rights ( TRIPS).
Article 19. (1994). Agreement on Trade-Related Aspects of Intellectual Property
Rights.
WIPO. (2014). Retrieved from wipo.int: http://www.wipo.int/treaties/en/text.jsp?
file_id=288514
Ray August, D. M. (2013). Trademarks/ Refusing Registration. In D. M. Ray August,
International Business Law (p. 522).

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