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Law assignment report 2016

By:

Ng Xing Kang 1141125245


Hooi Zi Yang 1131122845
Joshua Chong Kah Leong 1131122826
Chew Kah Keong 1122703139
Pock Seng Hao 1141125216

The project report is prepared for


Faculty of Engineering and Technology
Multimedia University
to complete the course
BHM3086 Law For Engineers

FACULTY OF ENGINEERING AND TECHNOLOGY


MULTIMEDIA UNIVERSITY
September 2016

1
(year of report submission) Universiti Telekom Sdn. Bhd. ALL
RIGHTS RESERVED.

Copyright of this report belongs to Universiti Telekom Sdn. Bhd as


qualified by Regulation 7.2(c) of the Multimedia University
Intellectual Property and Commercialisation Policy. No part of this
publication may be reproduced, stored in or introduced into a retrieval
system, or transmitted in any form or by any means (electronic,
mechanical, photocopying, recording, or otherwise), or for any
purpose, without the express written permission of Universiti Telekom
Sdn. Bhd. Due acknowledgement shall always be made of the use of
any material contained in, or derived from, this report.

2
DECLARATION

I hereby declare that this work has been done by myself and no portion of
the work contained in this report has been submitted in support of any
application for any other degree or qualification of this or any other
university or institute of learning.

I also declare that pursuant to the provisions of the Copyright Act 1987, I
have not engaged in any unauthorised act of copying or reproducing or
attempt to copy / reproduce or cause to copy / reproduce or permit the
copying / reproducing or the sharing and / or downloading of any
copyrighted material or an attempt to do so whether by use of the
Universitys facilities or outside networks / facilities whether in hard copy
or soft copy format, of any material protected under the provisions of
sections 3 and 7 of the Act whether for payment or otherwise save as
specifically provided for therein. This shall include but not be limited to any
lecture notes, course packs, thesis, text books, exam questions, any works of
authorship fixed in any tangible medium of expression whether provided by
the University or otherwise.

I hereby further declare that in the event of any infringement of the


provisions of the Act whether knowingly or unknowingly the University
shall not be liable for the same in any manner whatsoever and undertake to
indemnify and keep indemnified the University against all such claims and
actions.

Signature: __________________________

Name:

Student ID:

Date:

3
TABLE OF CONTENT

No. Content Sub content Page no.


0 Declaration, cover page and content list 1,2,3,4
1 Introduction 5,6,7
2 Cases summary and analysis List of cases 8
Case 2.1.1 [IC] 9
Case 2.1.2 [IC] 10,11
Case 2.1.3 12,13,14
Case 2.2.1 15,16
Case 2.2.2 17,18
Case 2.2.3 19
Case 2.3.1 20
Case 2.3.2 21
Case 2.3.3 22
Case 2.4.1 23,24,25
Case 2.4.2 26,27
Case 2.4.3 28,29
3 Findings & recommendation 3.0 Findings 30, 31, 32,
3.1 Reccomendations 33, 34, 35,
36, 37,
4 Conclusions 38
5 References 39, 40, 41

6 Appendices Report summary A, B, C

List of figure and tables

Table figure Content name Page no.


Table 1 case listing 7
Table A Report summary A,B,C
Figure 1 Oklahoma State sues New Mexico 9
State over 'confusingly similar' Pistol
Pete logo
Figure 2 The Davinci Code cover 12

Figure 3 Restoran Oversea 25


Holdings Seafood Restaurant Sdn
Bhd .
Figure 4 Oversea Holdings Restaurant Sdn 25
Bhd .
1.0: INTRODUCTION

4
Some of our furniture, art and music album are actually an intellectual
property of their respective artist, designer or inventor. Intellectual Property
is basically an invention that is the result of creativity where one can apply
their right for it.[1] For the intellectual property owner to obtain recognition
and financial benefits, they need a body of both federal and state law to
protect what they have invented or created. [2] Altogether this body of law is
termed as the intellectual property (IP) law that functions to protect
creative property in the form of copyright, trademark, and patent laws with
its own set of technical rules. [3] The relative statute is Copyright Act 1987,
Copyright Amendment Act 1997, Trade Marks Act 1976 and Patent
Act1983.

Copyright are the original intellectual works e.g.: literary works


(Copyright Act Section 3), artistic works, architecture, movies, software,
photos, dance, and music. (Section 7(1)). Copyright Act Section 7(2A)
states that the protection is not extend to idea, procedures, operation method
or mathematical concept. They should be written down, recoded and
reduced to material form as mentioned in Section 7(3). Upon passing the
minimum requirement qualification, they will be protected under federal
copyright law within a fixed period that was based on when the work is
published (Section 10). [2] The owner is later granted the rights to reproduce,
publish, rent and distribute their creation. (Section 13(1))

Trademarks are brand names, logos, slogans, and others devices that
determines and distinguish products and services from others. They are
protected under federal and state trademark laws with different degrees of
protection. This depends on a number of variables, for instance consumer
awareness, type of service and product, geographic area. [2]

Patent is a right to an invention. The Patent Act Section 3 defines the


owner of a patent (patentee) as the grantee of a patent with the rights to
prevent others in making patented goods or patented process. Section 12
however defines an invention as an idea that permits in practice the solution
to a specific technological problem. The invention should be new, involves
an inventive step and industrially applicable as mentioned in Section 11.

Right of Publicity is for the image and name of a person. They are
protected under a patchwork of state laws against the unauthorized use of a
persons name or image for commercial purposes.

Trade Secrets are sensitive business information. They are protected


under state and federal trade secret laws depends if that information gives

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the business an edge over competitors, is kept secret, and not known by
competitors.

Industrial Design is where a party provides professional service of


creating products and systems that optimize function, value and appearance
in the benefit of user and manufacturer through means of mass production.
The registered design (shape, configuration, pattern or ornament) should be
new or original, applied to an article and an industrial process as well as
appeal to the eye.

The IP law is meant to promote intellectual progress by exchanging


limited exclusive rights for disclosure of a creation between the owner and
society. These exclusive rights allow owners to benefit through their
creation of an investment financial incentive. Throughout the years, IP laws
have successfully creates employment especially in developed nations such
as ours. It is essential in maintaining economic growth as it caters statutory
expression to the moral and economics rights of the creators as well as of
the public to access it. At the same time, protection of intellectual property
allow its propagation and application which in turns, encourage fair trading
that develops a nation economics and social development. [4] By optimising
the interest of innovator with the wider public interest, the IP law can create
an environment which flourishes creativity and innovation freely without
causing losses to the intellectual property owner. [2]

When a party has breached the intellectual statures, and violates the
intellectual property rights, he/she is said to have committed an
Infringement of a patents, copyright, or trademarks, or a
misappropriation of trade secrets. Based on the intellectual property,
jurisdictions and the infringement nature, this may be considered as a breach
of civil or criminal law. Section 36(1) of the Copyright Act 1987 infer that
direct infringement occurs wherever any party does or cause any other party
to do in the absent of the owner copyright license while Section36(2) infer
indirect infringement as the imports of an article for business purpose by
any party who is without the copyright owner license or consent.

1. Patent infringement is when a party use or sell a patented invention


without patentee permission. In most country the patent infringement cases
are judged under civil law (e.g.: United States) while some incorporate it
into criminal law (e.g.: Argentina, China, France, Japan, Russia, South
Korea) [4]

2. Copyright infringement a.k.a piracy is when a party reproduce, distribute,


or perform a work without copyright holder permission from the. [5] The
copyright holder is held responsible for the enforcement of their copyright.

6
To strengthen the existing copyright system, the ACTA trade agreement is
signed. Through this agreement, parties that infringe copyright are liable to
criminal penalties, incarceration and fines. [6] Exceptions to copyrights are
the fair use and fair dealing doctrine which does not constitute infringement.

3. Trademark infringement is when a party uses an identical or confusingly


similar trademark to that of another party as Trade Marks Act1976 Sections
38 per say. Despite trademark automatically receive protection, registering it
would provide legality support for enforcement. This infringement can also
be handled under civil litigation or criminal law. [6]

4. Trade secret misappropriation is distinguishable from infringement of


other intellectual property laws as its nature is secret and not publicly
available. Most trade secrets are protected under state law (e.g.: Uniform
Trade Secrets Act) while under federal law in some countries for instance
United States which makes stealing or whistleblowing of a trade secret a
serious federal crime. In Commonwealth, trade secrets are equitable right
and not property theft.

7
2.0: CASES SUMMARY AND ANALYSIS

List of case:

no. case Case name


infringement
2.1.1 copyrights Mattel, Inc. v. MGA Entertainment, Inc.
2.1.2 OSU sues NMSU over Pistol Pete mascot

2.1.3 Michael Baigent and Richard Leigh v The


Random House Grp ltd
2.2.1 Patents Graver Tank v. Linde Air Products Co. 339 U.S.
605 (1950)
2.2.2 Egbert v Lippmann

2.2.3 Acumen Marketing Sdn Bhd & Anor v Putrajaya


Holdings Sdn Bhd & Ors

2.3.1 Industrial Honda Giken Kogyo Kabushiki Kaisha v Allied


designs Pacific Motor (M) Sdn Bhd & Anor

2.3.2 Brighto Auto Industries vs Raj Chawla

2.3.3 Escorts Construction Equipment Ltd vs Action


Construction Equipment Pvt Ltd

2.4.1 Trademarks Restoran Oversea Holdings Sdn Bhd v Overseas


Seafood Restaurant Sdn Bhd

2.4.2 TOHTONKU SDN BHD v SUPERACE (M)


SDN BHD
2.4.3 Chanel, Inc. v. Smith, 151 U.S.P.Q. 685
Table 1: case listing

8
Case 2.1.1:

Mattel, Inc. v. MGA Entertainment, Inc.


Summary:
In this copyright case happened in court of appeal, United States on January
24, 2013. The plaintiff for this case is Mattel and defendant is MGA
ENTERTAINMENT. [7]
The panel conformed in part and overthrow the court of appeals
sentence after the new jury on remand was judged the case in a behavior
under the Copyright Act. On remand, Mattel, Inc. argue that the MGA
Entertainment, Inc. was violated Mattels copyrights by manufacturing
Bratz dolls. Unfortunately the request was rejected by the jury, when they
found MGAs deal secrets was misappropriated by Mattel and the court of
appeal conferred lawyers fees and expenses to MGA under the Copyright
Act.[7]

Analysis:

This is a Direct Infringement case. Section 36(1) states that copyright is


infringed by any person who causes any other person to do thing without the
license of the owner of the copyright, an act the doing of which is controlled
by copyright under this Act. [7] The jury judge that the counterclaim for
MGAs misappropriation of deal was not compulsory under California law
because it doesn't have same total core of case as Mattels deal
misappropriation counterclaim. The MGAs argue related fees, costs and
damages was abandon by the panel. [7]

9
Case 2.1.2:

OSU sues NMSU over Pistol Pete mascot


This Pistol Pete Mascot copyright case happened in federal court, United
States on December 3, 2014. The plaintiff for this case is Oklahoma State
University and defendant is New Mexico State University.[8]

A powerhouse college is suing New Mexico State University,


claiming the Aggies have plagiarized their mascot. The suit claims it is
confusingly similar to its own and includes an image of Pistol Pete that
NMSU has used in the past when it first adopted the mascot in the 60s. [8]

OSU originally brought the copyright infringement lawsuit back in


October, protecting its 80 year old trademark from the similar-looking
classic NMSU logo. In 2005, NMSU began to phase out the classic logo in
favor of a widely unaccepted, but modernized Lasso Larry. The New
Mexico State Aggies now use an updated version of a pistol-toting cowboy
that avoids any confusion with OKSUs Pistol Pete. [9]

Figure 1:Oklahoma State sues New Mexico State over 'confusingly similar'
Pistol Pete logo- [8]

Analysis: Section 3 defines the owner of the patent (patentee) as the person
for the time being recorded in the Register as the grantee of a patent.[9]

The patentee has the legal rights to stop others producing the
patented goods or applying the patented process by suing for infringement -
for up to twenty years from the date of filing of application. [9]

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To protect Oklahomas trademark and still offer the classic logo to
NMSU alumni, the schools reached a licensing agreement. [10] New Mexico
State will pay $10 per year for rights to sell items with the classic logo. The
agreement restricts such sale to the schools bookstore or online retail
space. Additionally, NMSU can only distribute up to 3,000 items
containing the classic logo per year. [10]

11
Case 2.1.3:

Michael Baigent and Richard Leigh v The Random House Grp ltd

This Michael Baigent and Richard Leigh v The Random House Grp
ltd copyright case happened in Court of Appeal, United Kingdom on 28 Mar
2007. The plaintiff for this case is Michael Baigent and Richard Leigh and
defendant is The Da Vinci Code.[10]
The case against the publishers of The Da Vinci Code was brought
by Michael Baigent and Richard Leigh, the authors of a non-fiction work,
The Holy Blood and The Holy Grail, which was first published in 1982.
Messrs. Baigent and Leigh claimed that The Da Vinci Code was an
infringement of their copyright in their book. [10]

At the center of the dispute was a hypothesis presented in The


Holy Blood and The Holy Grail concerning the early Christian legend of the
holy Grail. (The theme of the quest for the lost Grail - i.e. the cup, or chalice,
used by Jesus Christ at the Last Supper - was a popular theme in medieval
tales of chivalry and has inspired countless writers, film-makers and
historians through the ages.) [11] The core of the authors hypothesis in The
Holy Blood and The Holy Grail was that references to the Grail in early
manuscripts were disguised references not to the chalice, but rather to holy
blood or Sang real, i.e. to the bloodline of Jesus Christ, and to the belief that
this bloodline - through marriage between Jesus Christ and Mary Magdalene
- had continued and merged with the French Merovingian dynasty. [10]

In their book, Michael Baigent and Richard Leigh argue that the
Holy Roman Church and its successors had sought to suppress this
bloodline, but that a powerful secret sect, the Priory of Sion, was formed to
protect this "grail." Baigent and Leigh used six known indisputable
historical facts, or supposed facts, though their conclusion was the result of
historical conjecture based on those facts. This quasi-historical approach
was also the basis of various other published hypotheses as to the merging
of Christs bloodline with the Merovingian bloodline. [11]

Dan Brown is a popular fiction writer, and his book, The Da Vinci
Code, has been the number one best-selling novel in Europe and U.S. for
months. The Da Vinci Code is a murder mystery. It opens with the death - in
Paris Louvre museum - of the Grand Master of the Priory of Sion, Jacques
Sauniere. Seeking to solve his murder, the heroes of the story are led on a
Grail quest, in which they must unravel a series of puzzles based on the
history of the Priory of Sion and on the secret behind Christs bloodline. [11]

12
There was no doubt that Dan Brown had drawn on The Holy Blood
and The Holy Grail. Indeed, there was a clear and explicit reference to the
book in The Da Vinci Code, and the name of one of the characters, Sir Leigh
Teabing, was based on an anagram of the names of the two authors.

Figure 2: the Davinci Code cover


The Da Vinci Code is still topping sales charts, while The Holy Blood and
the Holy Grail has climbed to the U.K. top 40 as a result of the controversy.
[10]

Analysis: This is a Infringement case. The right granted under


copyright: Section 13(1)(a) to (f) which only the owner can do or authorize.

When somebody other than the owner attempts to do certain


act within the exclusive rights of the owner without the
permission or authorisation of the owner, he is said to
infringe the copyright of the owner.

The court held that, while the evidence was clear that Dan Brown and his
primary researcher had drawn on The Holy Blood and The Holy Grail to a
greater extent than Brown had acknowledged, this did not mean that they
had infringed copyright in the book. The judge had found some copying, but
not so much that a substantial part had been copied. Rather, they had used
The Holy Blood and The Holy Grail, and other books, to provide general
background material for the writing of The Da Vinci Code. [11]

13
Case 2.2.1:

Graver Tank v. Linde Air Products Co. 339 U.S. 605 (1950)

Summary:

The plaintiff , Linde Air Products Co. owned a patent for an


electronic welding process and sued the defendants , Graver Tank for
infringing the patent for using a very similar process. The arguments held on
30th March 1950 and the court decided the decision on 29th May 1950.This
case happened in the United Stated. The defendants said that they were not
infringing the patent as the electronic welding process is not the same
though almost 99% of the process was the same but the specific welding
component used by defendants was consisted of Calcium and Manganese
while the plaintiff was consisted of Calcium and Magnesium. Even though
Manganese and Magnesium are both elements on the period but are having
different properties. In all respects, the two compositions of the welding are
alike and the mechanical methods in carrying out the electronic welding are
also similar. They are also identical in operation and produce the same kind
and quality of weld.

Analysis:

The trial court found that even though Lindes patent did not claim for
Manganese , it was close enough that it hit the requirements of non-textual
infringement which was known as the Doctrine of Equivalents.

The US Supreme Court affirmed and found that the defendants


electronic welding process infringed on the Lindes patent through Doctrine
of Equivalents. Besides that the court had stated that there were 2 tests that
could use to determine the non-textual infringement to be valid. The first
test is the triple identity test , something is equivalent if it performs
substantially same function , in substantially the same way , or to yield to
substantially the same result. The second test is insubstantial change test ,
where something is equivalent if there is only an insubstantial probability
that between each of the features of the device or process and the pattern
claim. The court found that defendants actions by substituting the
Manganese was an insubstantial change.

In a dissent , an argument about the courts should not expand further


the scope of the patent beyond what UPSPTO had determined. In the
dissents opinion, they think if Linde failed to claim Manganese and it

14
would be Lindes fault for messing up their claims.The was nothing
stopping them from claiming Manganese.

Notice that the doctrine of equivalents is a legal rule in many (but


not all) of the world's patent systems that allows a court to hold a party
liable for patent infringement even though the infringing device or process
does not fall within the literal scope of a patent claim, but nevertheless is
equivalent to the claimed invention. U.S. judge Learned Hand has described
its purpose as being "to temper unsparing logic and prevent an infringer
from stealing the benefit of the invention".[14]

15
Case 2.2.2 :

Egbert v Lippmann

104 U.S. 333 (1881)

The case happened in United Stated where the husband of the plaintiff ,
Barnes heard his wife, Egbert and her friends kept complaining that their
corsets kept breaking. Hence, he invented a new kind of doo-dad that would
make the corsets sturdy. The wife had used the doo-dad which was given by
his husband for over 10 years. Besides, Barnes also shown his friends how
the doo-dad worked back then. After eleven years, Barnes had applied for a
patent on the originally making the doo-dad . The corsets became so much
popular after then.

After Barnes past away,the plaintiff inherited the patent and later the
defendant , Lippmann began manufacturing the corsets which was similar
with the doo-dad. The plaintiff sued the defendant for infringement of patent.
The defendants testified that Barnes told him about the invention in 1863,
that Barnes asked his wife to remove her closet and used a pair of scissors to
remove the steels and explained how the corset was made and functioned.
Defendant argued that this evidence confirmed that the steels were "in
public use" long before a patent application was made which ultimately
voided the issued patent.

Analysis:

The U.S Supreme Court found the patent to be invalid as when the Court
looked into the patent law , which is now the 35 U.S.C. 102(b). The
current standard of law stated that : A disclosure made 1 year or less before
the effective filing date of a claimed invention shall not be prior art to the
claimed invention. . Back then it was 2 years instead of 1 year.

It was mentioned by the Court that one cannot patent something that
was in public use , with the consent and allowance of the inventor , for more
than 2 years prior to his application.The Court noted it would be a public
use since there is no confidential agreement on this.

In a dissent, it was argued that this was not a public use. Considering
that this invention had no limitation was imposed to its use in public . It
might be imagined that was a prohibition to wear the corsets to a party
against exposing her use of the steel spring to public observation which
would be a piece of irony. An objection that the invention was not capable

16
for public use . The dissent argued that confidentially was implied by the
nature of the patent.

The Public Use Exception is important because the US has a "first to invent"
patent system. If the exception didn't exist, then a person could invent
something, sell it all over the place, and then only apply for a patent once a
competitor started copying it. Since no competitors would copy the product
knowing that the inventor could patent it at any time, the inventor's
monopoly would be indefinitely extended.[15]

17
Case 2.2.3

Acumen Marketing Sdn Bhd & Anor v Putrajaya Holdings Sdn Bhd &
Ors

Summary of case:
1st plaintiff (Acumen Marketing Sdn Bhd) initiate an action for losses for
[of industrial design no. MY 01-00304], to the streetlamps design of
Nyonya & Baba from the 1st defendant and IC(infringement of copyright)
Diamond Optic lighting program. [20]

1st defendant (P.J. Holdings) denied various proposals of street


lamps as proposed by Sabit Acla. Meanwhile, the 1st plaintiff (Acumen)
proposed the Nyonya & Baba proposal for the street lighting pole and
collaborating with Sabit Acla to come up with the proposal to the 1st
defendant. The first defendant did not know the involvement of the first
plaintiff in designing phase in entity until acknowledgement by Sabit Acla.
[20]

2nd plaintiff (W. DW) developed the Diamond Optic R.S (reflector
system) and assigned the 1st plaintiff to solely provide the Diamond Optic
R.S lanterns to intall into the Malaysia Street Lamps system. The
involvement of the 2nd plaintiff in the Nyonya and Baba streetlight design
is not acknowledged to the first defendant. [21]

In the 1st defendant defence, the express terms of which contract they
agreed with 1st plaintiff, the whole IPs (drawings, designs and products)
applied in the program comprising of Nyonya & Baba streetlamps is
owned as a whole by the 1st defendant. It contradicted with the 1st plaintiff
held the property ownership over the industrial designs on trust for the 1st
defendant and hence for a instruction for an order that the 1st plaintiff must
present the assignment by absolutely to it all the rights. [20]

Analysis:
According to the clauses in the contract pre-planned, the High Court draw to
no other conclusion than that all the IPs (drawings designs) developed by
the 1st plaintiff falls to the ownership of the 1st defendant.
Evidence clarified that 1st plaintiff had proposed a higher price due to time
and effort consumed in creating the proposal and source file for the project.
Further consideration in the rights for intellectual design had been included
into the contract. It is obvious from the shown evidence that the 1st plaintiff
had designed the idea specially for the 1st defendant only and by Section
10(2) Industrial Designs Act 1997, the 1st defendant hold the ownership of
the ICs of the Nyonya & Baba streetlights. (1st defendant who

18
commissioned the work would be the original owner of the industrial design
and not the 1st plaintiff).[21]

19
Case 2.3.1:

Honda Giken Kogyo Kabushiki Kaisha v Allied Pacific Motor (M) Sdn
Bhd & Anor
Case summary:

Honda Motor Company which is based in Japan and is one of the largest two-wheeler
producing companies in world, filed for an interim injunction in 2005 for design
infringement of their motorcycle- HONDA WAVE 125 model.[17]

The company claimed that a Malaysian company had infringed the designs of
the motorcycle HONDA WAVE 125 model registered by Honda Motors in Malaysia,
which included the rear combination lamp, leg shields and handle cover equipped with
lights of a motor scooter.

Issues that the High Court of Malaysia looked at:

1. whether the design was valid or not?


2. whether the design was novel or not?

Analysis:

The Court held that the registration of a design had to be presumed to be valid, once the
design had been published in the gazette declaring it to be a registered design, until
proved otherwise. This was based on the fact that the Registrar while carrying out the
registration process would not only scrutinize the documents required and procedures
complied for the registration process, but also would ascertain if the law allowed a
particular design to be registered. The Court rejected the plea of the defendants that
Hondas design was not novel, since the company had launched the same model in
Thailand earlier. The Court said that the novelty aspect of any design is limited to the
territory, where the registration is sought. Under the Malaysian Designs Act, a design is
not considered new only if it is disclosed to the public anywhere in Malaysia, or is the
subject matter of another application with an earlier priority date. Though the Court
found that the defendants product had substantially imitated the plaintiffs registered
design, it did not grant an interim injunction. The Court did not grant the injunction
owing to balance of inconvenience because of the fact that Honda Motor Company
had never launched the product in Malaysia, while the defendant had already started
marketing their product. Therefore if the interim injunction were to be granted there
would be serious ramifications including financial and social consequences, for the
defendant.[18]

20
Case 2.3.2:

Brighto Auto Industries vs Raj Chawla


Summary:

A petition was filed by M/s Brighto Auto Industries, a partnership firm, engaged in
manufacture of various articles, including rear view mirrors. The petition by M/s
Brighto Auto Industries sought the cancellation of the design of rear view mirrors
(Registration Number 139585) registered under class I of the Designs Act, 1911.The
plaintiff claimed that the registered design was neither new nor original.The issue
before the court was to identify:

1. Whether the registered design was new or not?


2. Whether the registered design could be cancelled, in case the design was not
found to be new?

The plaintiff substantiated his contention with evidences that the rear view mirror with
the registered design had been available in market since long. However, the defendant
claimed that he had invented the design and the design was novel. The defendant
however did not support his claim with any evidence.

Analysis:

The Delhi High Court looked into the distinction between new and original, while
giving the judgment and referred to the judgement in,Dover Ld. v. Nurnberger
Celluloidwaran Fabrik Gebnider Wolff (27 R.P.C. 498). According to the judgment
passed in the above case, new referred to a case where the shape or pattern was
wholly new in itself and on the other hand original to the case where, it was old but
new in its application to the particular subject matter. The word original, contemplates
that the person has originated something, that by the exercise of intellectual activity he
has started an idea which had not occurred to anyone before, that a particular pattern or
shape or ornament may be rendered applicable to the particular article to which he
suggests that it shall be applied.

In this case, the defendant accepted that rear view mirrors were available in the
market, which were rectangular in shape with rounded edges, width sides curved or
sloping and the lower length side also sloping .The novelty incorporated by the
defendant was a further curve in the sloping upper length side. The rear view mirrors
previously sold in the market did not carry this type of curvature on the upper side.

The Court concluded that the innovation which the defendants claimed was
insufficient to consider the design as new. The Court identified the design in question

21
as just a simple variation of the earlier available product in the market and ordered the
design to be cancelled.[19]

Case 2.3.3:

Escorts Construction Equipment Ltd vs Action Construction Equipment Pvt Ltd

Summary:

The issue involved the alleged illegal copying of a design by the respondent of Pick-
N-Carry Hydraulic Self Mobile Cranes manufactured by the plaintiff. Though the case
did not directly fall under the purview of the Designs Act, the Court examined whether
the said design was capable of registration under the Designs Act. After examining the
definition of a design under the Act, the Court held that the design in question was
incapable of registration. According to the Court the definition made it amply clear that
the primary objective of the Act was to protect the shape and not the function, or
functional shape.

Analysis:

The Court said that the parts of the crane being claimed for design protection were not
made to appeal to the eye but solely to make the crane work or function. The Court
stated that The expression design does not include a method or principle of
construction or features or shape or configuration which are dictated solely by the
function which the article to be made in that shape or configuration has to perform.

In conclusion, the Court, declared explicitly that a claim of design cannot be


made on any functional part of a product.

The above mentioned decisions enlighten on certain important aspects of the


design registration process, and are considered as landmark judgments.

The novelty for industrial designs is local, and thereby the publication or use of
the design outside the country prior to registration will not render the design
invalid.
All industrial designs are valid unless proven otherwise.
The design has to be new and novel for claiming registration. The innovation
claimed should not be petty.
Design registration cannot be claimed for functional aspects of any product.[17]

22
Case2.4.1:

Restoran Oversea Holdings Sdn Bhd v Overseas Seafood Restaurant Sdn


Bhd

Summary :

The Restoran Oversea Holdings Sdn Bhd (plaintiff) and Overseas Seafood
Restaurant Sdn Bhd (defendant) have been involving in the seafood
business. The plaintiff had carried out legal action to claim damages from
defendant due to the usage of plaintiffs two trade marks.

The plaintiff has 2 registered trademarks where the first trade marks
is consisted of 3 Chinese characters , where the first two characters meant
overseas and the third character meant sky . The second trademark is a
circular image in red color and the same three chinese characters on top
rolling waves combined with the words Restoran Oversea.

The plaintiff alleged that the defendant had been promoting its
restaurant by using business name which is identical to plaintiffs two trade
marks in the form of distributing business cards and advertisement.The
plaintiff believed that defendants business will cause confusion and
deception in mind to the customers.

The defendant has filed a counter-claim and a defence.For defence,


the defendants business name which is the three Chinese Character and
also the Overseas are not the same from the Plaintiffs trademark. Besides,
the defendant claimed that they are not selling any products , menus of their
restaurant is not the same with the Plantiffs products which is operating
food and beverage outlets on top level of the marketing , distributing
products and selling.For counter-claim , the defendant had applied for the
Plaintiffs two trademarks to be removed as the three Chinese characters
were too normal and not distinctive of the plaintiffs business and / or were
capable of distinguishing its business at the commencement of proceedings.
The plaintiff had striked out the defendants counter-claim that the
defendant was not a person aggrieved which falls within Section 45 ,
Trade Marks Act 1976.

23
Analysis :

The High Court looked into the definition of aggrieved person in Section
3 of Act, which must be read together with Section 56 of the Act. From
these Sections, the definition does not apply to a usage of name.

Section 3(1),Trade Marks Act 1976 : trade mark means, except in


relation to Part XI, a mark used or proposed to be used in relation to goods
or services for the purpose of indicating or so as to indicate a connection in
the course of trade between the goods or services and a person having the
right either as proprietor or as registered user to use the mark whether with
or without an indication of the identity of that person, and means, in
relation to Part XI, a mark registrable or registered under the said Part XI;

Section 56(1) , Trade Marks Act 1976 :A mark must be capable, in


relation to any goods or services, of distinguishing in the course of trade
goods or services certified by any person in respect of origin, material,
mode of manufacture, quality, accuracy, or other characteristic, from goods
or services not so certified shall be registrable as a certification trade mark
in the Register in respect of those goods or services in the name of that
person as proprietor thereof except that a mark shall not be so registrable
in the name of a person who carries on a trade in goods or services of the
kind certified.

High Court had approved the plaintiffs strike out application as the
defendant was not a a person aggrieved within Section 45 , Trade Marks
Act 1976.Hence, no legal standing for the counterclaim under the said
provision.

The High Court had based on its finding on that the defendant was
not using a mark but simply a name- business name and decided that
the Plaintiff has no reasonable cause of action against the Defendant. The
Defendant was not using the Plaintiffs trade marks, but just the business
name that was related to the Defendants nature of business and hence there
was no case for trade mark infringement. The words overseas, restaurant
and seafood are common, thus the Plaintiff does not have any claim. The
Plaintiffs claim was struck out under the virtue of Order 92 Rule 4 of the
Rules of Court 2012.With such decisions, both parties are now even without
any clear victory to either party.[13]

24
Figure 3 : Figure 4:
Restoran Oversea Oversea Holdings
Holdings Seafood Restaurant Sdn Bhd .
Restaurant Sdn Bhd .

25
Case 2.4.2

TOHTONKU SDN BHD v SUPERACE (M) SDN BHD [1989] 2 MLJ


298 (Malaysia , 20 March 1992)

Summary

TOHTONKU SDN BHD(Plaintiff) and SUPERACE(M) SDN


BHD(Defendant) have been involving in the intellectual property case in
Malaysia. Both of the companies have a conflict in term of the trade mark.
The TOHTONKU SDN BHD have registered the trade mark MISTER as
well as a product which is called as MISTER003. TOHTONKU SDN
BHD had applied a unilateral order pursuant to s 16 of the Trade
Description Act 1972 to state that the SUPERACE(M) SDN BHD SISTER
trade mark was in infringement applicants right in term of its own
registered trade mark. TOHTONKU SDN BHD also declared that the trade
mark SISTER was a false trade description for the purpose of the Act. [22]

SUPERACE(M) SDN BHD applied for the court to grant itself to


intervene in this action and be the respondent in this motion. They also
order that obtained in High court to be set aside and rescinded. In addition,
SUPERACE also request the applicant to pay the damages to them. [22]

The appeal is dismissed .In determining whether a party may be


added as an intervener , the test is if his 'legal interests', for example his
rights against or liabilities to any party to the action in respect of the subject
matter of the action would be directly affected by any order or judgment
which might be made in the action. Applying the test the answer to the
question was definitely in the affirmative where the respondent was
concerned and therefore the High Court was correct in its decision allowing
the respondent to intervene in these proceedings. [22]

On the merits of the case, having regard to the 'tests' set out in The
Pianotist Co Ltd, the High Court was correct in concluding that it was not
likely that ordinary purchasers would be deceived into regarding the
respondent's product to be the product of the appellant, that the appellant's
rights in respect of its trade mark had not been infringed and consequently
the appellant was not entitled to the order under s 16 of the Act. [23]

Analysis

With regard to the merits of the case, the principal issue before the
judge was whether the trade mark of the appellant had been infringed by the
intervener. Under s 35 of the Trade Marks Act 1976 the registered

26
proprietor of a trade mark in respect of any goods has the exclusive right to
the use of the trade mark in relation to those goods. [23]

Under s 16 of the Trade Descriptions Act 1972, where any registered


proprietor registered user of any trade mark finds that his rights in respect of
such trade mark has been infringed, he may apply for an order declaring
such infringing trade mark to be a false trade description for the purposes of
this Act. [23]

Under s 38 of the Trade Marks Act 1976, a registered trade mark is


infringed by a person who uses a mark which:

(a) is identical with it; or

(b) so nearly resembling it as is likely to deceive; or

(c) so nearly resembling it as is likely to cause confusion.

The two words MISTER and SISTER are not look like same to
cause the confusion and deception. These two words are not alike. The only
similarity is the second syllable for both the word but for the whole word
are not similar enough to cause the misunderstanding or confusion. In
addition, both of the background are different for the interveners product
the get-up is green background colour with the picture of a lady meanwhile
the get-up of the applicants product is white-blue-grey background colour
with the picture of a lady and a man. [22]

It is hardly to let the normal consumer to be deceived into regarding


the interveners product to be the to be the product of the applicant. In the
premise, we hold that the appellant's rights in respect of their trade mark
'MISTER' had not been infringed and their appeal must be dismissed. [23]

27
Case 2.4.3:

Chanel, Inc. v. Smith, 151 U.S.P.Q. 685 (United States ,8 January 1976)

Summary

Chanel,Inc(Plaintiff)and Smith (Defendant) have been involving the


intellectual property case in United States. The Smith doing business as
Ta'Ron, Inc., advertised a fragrance called "Second Chance" as a duplicate
of appellees' "Chanel No. 5," with the same formula and cheaper price.
Appellees were granted a preliminary injunction prohibiting any reference
to Chanel No. 5 in the promotion or sale of appellants' product. [24]

In the advertisement, the TaRon perfumes mentioned that the smell


of their perfume is exactly same as the Chanels perfume No 5 and it is
duplicated. It also show in advertisement that to challenge the public to
detect any difference between the Chanels perfume and their perfume.
Chanel couldn't sue on the grounds that Smith had copied the 'smell' of their
product, because perfume and fragrances were not copyrightable. Chanel
argued that Smith couldn't openly advertise that they had made a copy of
Chanel's product, even if it was legal for them to actually make the copy. [25]

The Court found that it was legal for Smith to claim in


advertisements that its product was the equivalent of Chanels. The Court
also found that, "disapproval of the copyist's opportunism may be an
understandable first reaction, but by taking a free ride, the copyist serves an
important public interest by offering comparable goods at lower prices."[24]

Analysis

In this case the principal question presented on this record is whether one
who has copied an unpatented product sold under a trademark may use the
trademark in his advertising to identify the product he has copied. We hold
that he may, and that such advertising may not be enjoined under either the
Lanham Act, 15 U.S.C. 1125(a) (1964), or the common law of unfair
competition, so long as it does not contain misrepresentations or create a
reasonable likelihood that purchasers will be confused as to the source,
identity, or sponsorship of the advertiser's product. [25]

28
Under the Lanham Act a use of the mark which is likely to cause
confusion or mistake or to deceive purchasers as to the source of origin of
such goods or services. Registration bestows upon the owner of the mark the
limited right to protect his good will from possible harm by those uses of
another as may engender a belief in the mind of the public that the product
identified by the infringing mark is made or sponsored by the owner of the
mark. The Lanham Act does not prohibit a commercial rival's truthfully
denominating his goods a copy of a design in the public domain, though he
uses the name of the designer to do so. [24]

The real intent of the plaintiff's bill, it seems to us, is to extend the
monopoly of such trademark or tradename as she may have to a monopoly
of her type of bitter water, by preventing manufacturers from telling the
public in a way that will be understood, what they are copying and trying to
sell. But the plaintiff has no patent for the water, and the defendants have a
right to reproduce it as nearly as they can. They have a right to tell the
public what they are doing, and to get whatever share they can in the
popularity of the water by advertising that they are trying to make the same
article, and think that they succeed. If they do not convey, but, on the
contrary, exclude, the notion that they are selling the plaintiff's goods, it is a
strong proposition that when the article has a well-known name they have
not the right to explain by that name what they imitate. By doing so, they
are not trying to get the good will of the name, but the good will of the
goods. [25]

29
3.0: Findings

According to Table A at the appendices

In most of the cases (12 cases), only two parties are involved in which is the
plaintiff and defendant. The plaintiff is the acclaimed victim who sues
against the defendant in the court, while the defendant is the accused party
in the court. There are a total of 13 cases of intellectual property: 4
copyright infringements, 3 trademarks infringements, 3 industrial design
infringement, 3 patent infringements together with 1 co-related trade secret
misappropriation. In some cases, tests were carried out to determine the
components of the article are copyrightable or infringeable.

In three out of the four the copyright cases, the main reason for filing
is associated with the defendant article were duplicate or closely similar to
the plaintiff registered article. In fact, some of the articles are not
copyrightable for instance perfume and fragrance. Three of the four cases
judge decisions were to dismiss plaintiff action for matters that are subtle
and was not obvious to the public, making them variables that were targeted
for exploitation of infringement. Three of the court cases were settled in
high court while the other one was settled in appeal court. After the judge
decisions were given, the dismissed plaintiff has either withdraw their cases
with or without cost. The statures used were Copyright Act, Industrial
Designs Act and Lanham Act.

Similar to copyright cases, the main motive for filling is that


defendant trademarks were in conflict with plaintiffs and have closely
similar feature with each other. Two of the cases were on the ground of
common feature or substantial change of feature that would not confused or
deceived the normal consumer with the other respective trademarks. Two of
the court cases were settled in high court while the other one being more
critical, was settled in federal court. All trademarks cases were either
dismissed or settled in a win-win agreement of both parties. The statures
used were Trade Marks Act, Order 92 Rule 4 of the Rules of Court 2012
and Trade Descriptions Act.

On the patents cases, the reasons for legal action are largely varied.
Patent time constraint and public uses were applied. The registered design
should be new or original and its feature is dictated solely on its function
and not any insubstantial substitution of material. Two of the cases were
held under supreme court in which one is appealed from trial court while the
other one is held under court of justice whose jurisdiction are in the same
league as the supreme court. After the judge decisions were given, all
plaintiff action is allowed. The patents were all found to have infringed,

30
hence is held not valid anymore. The statures used were 35 U.S.C. 102
Patent Law and Registered Designs Act.

In industrial design cases, the cause of action are largely related to


the belief of a design being is copied. Just like patents, all design should
either be new or original, and more on shape and feature rather that its
function. The design should have sufficient novelty included. However this
design novelty is limited to territory where it must be disclosed to the local
public. All industrial cases are dealt swiftly in high court. Two of the
industrial design is held to be cancelled, or to be incapable or registration.
On the other hand, the other industrial design is held to be valid, and the
interim injunction is not granted to the plaintiff. The stature used was only
the Designs Act.

The above mentioned decisions tabulated enlighten on certain important


aspects of the article registration process, and are considered as landmark
judgments.

1. Copyrights

- The person commissioning shall be treated as the original owner


- Copyright is not infringed if there is an insignificant amount of a substantial part
copied

2. Trademarks

- A business name does not equate to a mark of a trademarks.


- Words that are common cannot be claimed.
- Patentee has the legal rights to stop others producing the patented goods or applying
the patented process by suing for infringement.
- Trademarks that only have a single similarity will not likely confuse or deceive the
normal consumer
- Copyist can legally serves an important public interest by offering comparable goods
at lower prices.
-Any person has the right to reproduce an unpatented product closely, disseminate the
process of imitation, share, advertising them.

3. Patents

- A registered design should be new or original


- Design feature is dictated solely by function, where a shape is not adopted
consciously and deliberately, and of a reason and motive other than
functionally-inspired preference
- Substitution of patent elements with exact process or vice-versa, that is obvious in the

31
related field, is an insubstantial change of the other patent.
- One cannot patent something that is in public use, with the consent and allowance of
the inventor , for more than 2 years prior to his application.
- The disclosure made one year or less before the effective filing date of the invention
shall not be its evidence
- A design cannot be registered before the date of the application for
registration of the same design

4. Industrial Design

- The design should be new in shape or pattern wholly and have sufficient novelty
incorporated
- Novelty of design is limited to territory; a design is considered new if it have not
disclosed to the public in that territory
- Design registration cannot be claimed for functional aspects of any product, but rather
the design shape
- All industrial designs are valid unless proven otherwise.

32
3.1:Recommendations

The foundation stone of Intellectual property was first set in the Paris
Convention for the Protection of Industrial Property in 1883. Then Berne
Convention was held in 1886 for the Protection of Literary and Artistic
Works and today, we have Article 2 of the Universal Declaration of Human
Rights to protect our intellectual property rights as a creator or owner of an
article on our own work or investment. [26] We are seeing the importance of
Intellectual Property Law more imperatively than before as its works to
protect the expression of ideas and creativity that has been massively
amount to the technological advancement and this benefit the society in
every field insurmountably. We would not have the drug for cancer if were
not for the medical researchers continuous handworks in developing more
efficient medication. However it is here where the intellectual property law
prohibits the drug from being misused for recreational or destructive
purpose. These will surely benefits the society as the patient will have more
chance to recover, the health of the communities on the other hand would
improve while the researches are credited for his effort in making the world
a better place.

The United States Patent and Trademark Office, USPTO, who lead
the world task force to combat infringement of intellectual property has
listed down the resolutions that are to be installed for the current IP system
to improve. The first is by advocating an universal intellectual property
rights (IPR ) policy that guide domestic IPR issues to reduce the backlog of
cases. USPTO will also provide advices on IPR and trade related issues, as
well as perform technical assistance and capacity-building programs for
foreign government who want to develop their IPR regulatory and
enforcement system.[28] They are also willing to provide assistance in
drafting, reviewing and implementation of IP obligations in treaties and
trade agreements for instances the Free Trade Agreement (FTA) which our
country participated. One of USPTO main mission is to foster long-term
direct working relationships with foreign government agencies and the
private sector. Through the collaboration of all trade parties, we can cover
all fields of the trades and as a result to leave no stone of infringement
unturned. Stronger legal framework for IPR protection and enforcement
must also be pushed from time to time to catch up with rising of number of
infringement escape-rope, which may already in or will be in our nation IP
system. As a global effort, this will catch the eyes of the public which
indirectly enhanced public awareness and support for IPR. [28]

To protect IP and curb IP theft, our country should establish the


Anti-Counterfeiting Trade Agreement which will improve the government
effort in coping with pandemic proliferation of counterfeit and pirated

33
goods. In spite of that, we should also implement the following initiatives
which are necessary to provide grounds for the IPR protection to take place.

1. The Administrations Strategy Targeting Organized Piracy (STOP!)


initiative which aims to create a support hotline for small and medium-
sized businesses leverage resources to protect their IP

2. The Enhanced Patent Quality Initiative which improve the rigor of


patents through providing excellence in prosecution services, customer
service, and measurement of patent quality

3. Two-day Patent Quality Summit for the public to discuss and suggest
improvement for IPR issues.

4. Patent Law Harmonization which encourages the streamlining and


collaboration with more with foreign counterparts to help cut costs and
increase efficiency. [29]

By having USPTO as a model for countering IPR infringement, the


copyright agencies like patent offices should in their best, advance their
cooperative work sharing initiatives and develop foundation tools to support
work sharing. These agencies can increase their number of work sharing
partnerships by implementing the Patent Prosecution Highway (PPH) on a
full-time basis that compliments on fast-track patent examination
procedures, hence enable both countries copyright agencies to obtain
corresponding patents faster and more efficiently. The laws governing the
intellectual property such that stature stated above in the findings have to be
updated and improved as well. The World Intellectual Property
Organization (WIPO), in which the USPTO is in, have their own law that
harmonizes formalities and simplifies procedures for registering and
renewing trademarks as well as promoting transparency, and flexibility of
the IP system. The national trademark offices should provide the permission
for change of traditional paper system to an entirely electronic system in
which would ultimately improve the effectiveness of IP systems, exchange
of information, best practices, and make the participation in of IP technical
capacity building activities to be more simple and flexible. [28]

From the findings conclusions, it is noted that there is the intellectual


property law still have blanks to be filled. As we have found out, there is an
increasing number of obvious injustices resulting from these intellectual
property (IP) laws and this lead to the growing clamor to reform
patent ,copyright and trademarks laws. The revised law should have their
essential features, scope, terms, and penalties intact with the goal of
reducing the cost of legal action and the harm imposed by the IP system in
the meantime maintaining the innovation incentives and other purported

34
benefits. [30] To improve the IP system, the following feature has to be
added in:

Patent Law

Reduce the patent term

Reduce but specified the scope of patentable product

Instantly publish all patent applications

Provide for advisory opinion panels

Exclude IP from trade negotiations

Make it easier to challenge a patents validity at all stages

Patent applicants need to specify exactly what part of their claimed


invention is new or old first

Patent applicants need to do a search and provide evidence showing


their claimed invention is new and non-obvious first

Limit the number of claims

Limit the number of continuation applications

Remove the presumption of validity that issued patents enjoy

Copyright

Reduce the term, from life plus 70 years to 30 years,

Install active registration and periodic re-registration and automatic


copyright notice for copyright holders

Provide an easy way to dedicate works to the public domain after


their term ends

Improve the unjust provisions of Copyright Act,

Provide that incidental use or design features (e.g.: buildings in the


background of films) is fair use

Trademark

Raise the bar for proving consumer confusion or deception

Abolish antidilution protection

35
After analysing the legal aspect of the cases in depth, ethical issues
must always be considered as legal things are not always ethical and vice-
versa. These days, it is common to see people downloading files through
methods that are not only illegal but also unethical. Internet users,
especially students commit this crime for it is free, easily done and low risk
crime. Most of us are unaware of the terrible consequences in the industrial
and society as a whole but instead believe that it is a common thing that
everybody else do. By illegally downloading, we are not giving credits and
rewards to the authors who have tirelessly spent their precious energy, time
and resources to create something that benefits to the society. In copyright
law, illegal downloading is as serious as theft of creation or infringements
and somewhat was treated as a form of slavery where they have work for us,
but we do not reward them in return. As we know, intellectual property has
been bringing in profits and job employments in millions to both developed
and developing nation. So to imagine that we deprive our country of
intellectual property through taking advantage of other peoples effort and
creativity, we would only bring downfall to our economy and ultimately dug
our own grave as we have to compensate more on our daily necessities in an
economy crisis. We must always keep in mind that anything that comes in
will comes out. By paying authors for their work, we are actually culturing
the chain of invention and providing resources they needed to improve and
create. However, many people believe in the stereotype of famous artists
being rich and luxurious that they do not need the money. This is when we
have overlooked on the employee in the industry whose salary and career
are solely dependent on sales. Infringement would only bring down sales of
the product and decline the industry profits. Consequently, these people in
the industry would lose their job and the societys welfare would suffers for
the sake of certain people gaining other people labour without paying the
cost. Piracy in intellectual property has an even evil form where some
people deliberately exploit other peoples work and then sell them off in the
market place at a lower price. This immoral and unethical exploitation of
other people work and creativity without compensating them financially but
instead making illegal money from it is a very heavy wrong doing.
Unbeknown to us, selling infringed products is a stealing from not the
owner himself but also the government as they did not have to pay taxes. [31]

To combat this problem, governments particularly the intellectual


property agencies and the industry must have a role to inform the citizens
about the seriousness of this crime and the ramification of the crime.
Guidelines should be share out to the publics so that we may have access to
artists works in an ethical manner while crediting the owner. This

36
accreditation does not have to be necessary in form of money. Some only
ask for recognition and acknowledgement so they can be share out more
widely as a free but controlled material. This way we can enjoy the works of
some artist in a right way that respect them and their labour.

37
4: Conclusions

The objective of this assignment is to examine the factors that caused


intellectual property infringement of the law by studying at 13 case studies
and at the end come up with suggestion to ameliorate the situation. We have
thoroughly studied four distinguishable forms of infringements: copyright,
trademarks, patents and industrial design, where the seriousness of the crime
and the effectiveness of the verdicts, whether it hurt creativity and
technological innovation are determined. Infringement of intellectual is not
only proven to cause losses in the country economy but also a steep decline
in job employment. Due to that reason, intellectual property law is necessary
to be reform and reviewed in hope of protecting the intellectual property, IP
and curbing the theft of IP as well as to reduce the backlog of cases in the
future. Resolutions and initiatives were suggested to strengthen and improve
the application of intellectual Property Rights (IPR). This would ensure the
future IP cases jurisdiction could be done professionally without the fear
that they promote copyright infringement or blocking the innovation of
devices. In the case of ethical issues, we have to be wise and not to conform
to the illegal norms of the communities such as the likes of illegal
downloaders. It is wrong for us to take other people creation for granted for
we must have consideration to accredit the owner, creator or holder of the
intellectual property, as well as the employee in the industry for it is their
daily bread of their career. Everyone has a role to play in combating
intellectual property infringement as this affect everyone overall. The public
must be informed about the seriousness and the consequences of this rime.
Guidelines, out-reach programs, global IP agencies collaboration and new
regulations are some of the starting step we could have in curbing this issue.
None the less, the greatest way to improve the situation is none other than
changing ourselves. Stop buying infringed products, downloading illegal
files, or even trying to making financial out of an infringement. Each of us
should promote intellectual property rights because we could one day be the
person that created a better way for better world and even if we will never
be our children, friends and future generation may be one day. So let start
anew now and be an ethical user for our actions now are the one that
determines our future.

38
5:References

[1] Introduction to International Property Law , Overview of


Intellectual Property Laws, Richard Stim October 2010, American
Intellectual Property Law Association, 2016 AIPLA. All Rights
Reserved ,source : http://www.aipla.org/about/iplaw/Pages/default.aspx

[2] What is Intellectual Property? , by World Intellectual Property


Organization, CH-1211 Geneva 20 Switzerland, Source :
http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf

[3]Chapter 1 INTRODUCTION, The Concept of Intellectual


Property,Intellectual Property Handbook: Policy, Law and Use, by The
World Intellectual Property Organization (WIPO) ,source:
http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf

[4] Matthew L. Cutler (2008) International Patent Litigation Survey: A


Survey of the Characteristics of Patent Litigation in 17 International
Jurisdictions, source:
http://blog.hdp.com/wp-content/uploads/2009/08/60549706_1.PDF

[5] Panethiere, Darrell (JulySeptember 2005). "The Persistence of


Piracy: The Consequences for Creativity, for Culture, and for
Sustainable Development" (PDF). UNESCO e-Copyright Bulletin. p. 2.
Source:
http://portal.unesco.org/culture/en/files/28696/11513329261panethiere_en.p
df/panethiere_en.pdf

[6] Irina D. Manta Spring 2011 The Puzzle of Criminal Sanctions for
Intellectual Property Infringement Harvard Journal of Law &
Technology 24(2):469-518, source:
http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech469.pdf

[7] UNITED STATES COURT OF APPEALS FOR THE NINTH


CIRCUIT MATTEL, INC., a Delaware corporation; MATTEL DE
MEXICO S.A. DE C.V.,
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/01/24/11-56357.pdf

[8] Oklahoma State sues New Mexico State over 'confusingly similar'
Pistol Pete logo
http://www.sbnation.com/college-football/2014/10/22/7039593/oklahoma-
state-sues-new-mexico-state-pistol-pete-logo

[9] Pistol Pete lawsuit put to pasture


http://sportslawinsider.com/pistol-pete-lawsuit-put-to-pasture

39
[10]Osu sues NMSU over Pistol Pete mascot
http://krqe.com/2014/10/21/osu-sues-nmsu-over-pistol-pete-mascot/

[11] copyrights in the court, the Davinci code , June 2006


http://www.wipo.int/wipo_magazine/en/2006/03/article_0004.html

[12] B A I G E N T A N D A N O T H E R V T H E R A N D O M H O U S E
GROUP LTD ( THE DA VINC I CODE); CHD 7 APR 2006
http://swarb.co.uk/baigent-and-another-v-the-random-house-group-ltd-
the-da-vinci-code-chd-7-apr-2006/
[13] Malaysia : the fight over oversea, June 27th 2016
http://www.adipven.com/malaysia-the-fight-over-overseas

[14] Graver Tank & Mfg.Co v. Linde Air Products co


https://supreme.justia.com/cases/federal/us/339/605/case.html

[15] 104 U.S. 333 (1881)


https://supreme.justia.com/cases/federal/us/104/333/case.html

[16] Escorts Const. Equipment Ltd. & ... vs Action Const. Equipment P.
Ltd. & ... on 16 October, 1998
https://indiankanoon.org/doc/1315312/

[17] Injuctive Relief In Industrial Design and 3d copyright in Malaysia, 3rd Nov
2006
https://www.scribd.com/doc/49456805/INDUSTRIAL-DESIGN-CASE-
STUDY

[18] Design Infringement in Automobile Industry


http://www.bananaip.com/ip-news-center/design-infringement-in-the-
automobile-industry/

[19] Brighto Auto Industries vs Raj Chawla on 24 December, 1976


https://indiankanoon.org/doc/1067916/?type=print

[20]
http://www.abstract.xlibx.info/as-psychology/2924376-6-section-
intellectual-property-court-section-anti-counterfeiting-se.php

[21]
http://www.apaaonline.org/pdf/APAA_58th_council_meeting_Korea/1-
RecognisedGroups-RG/MalaysiaRecognisedGroupReport2010.pdf

[22] Transcript of tohtonku v superace, 20 May 2015


https://prezi.com/bvfddd5-dwyu/tohtonku-v-superace/

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[23] CLJ_2008_2_121
https://www.scribd.com/document/91474968/CLJ-2008-2-121

[24] Law School Case Brief, 1968


http://www.invispress.com/law/property/smith.html

[25] case text


https://casetext.com/case/smith-v-chanel-inc

[26] What is intellectual property? by World Intellectual Property


Organization. (n.d., source :
http://www.wipo.int/freepublications/en/intproperty/450/wipo_pub_450.pdf

[27] Introduction to intellectual property: theory and practice,Intellectual


Property & Copyrights, Research Paper, 23 by World Intellectual Property
Organization.(1997). Source :
http://books.google.com/books?hl=en&id=n7DkfPpwLbEC&dq=what+is+i
ntellectual+property&printsec=frontcover&source=web&ots=Yhf-
y77pkm&sig=wOGQ-BD1LZdwp6R-
gFgmMyZn9o&sa=X&oi=book_result&resnum=8&ct=result

[28] STRATEGIC GOAL 3: IMPROVE INTELLECTUAL PROPERTY


PROTECTION AND ENFORCEMENT DOMESTICALLY AND
ABROAD, Performance and Accountability Report Fiscal Year 2008
Management's Discussion and Analysis, source :
http://www.uspto.gov/web/offices/com/annual/2008/mda_02_04.html

[29] How to Improve the Intellectual Property System, Hillary Schaub and
Darrell M. WestMonday, February 2, 2015, source:
https://www.brookings.edu/blog/techtank/2015/02/02/how-to-improve-the-
intellectual-property-system

[30] How to Improve Patent, Copyright, and Trademark Law, by STEPHAN


KINSELLA on FEBRUARY 1, 2011, Centre for the study of innovative
freedom, source
http://c4sif.org/2011/02/how-to-improve-patent-copyright-and-trademark-
law

[31] Jennings, M. (2006). Business: its legal, ethical, and global


environment. 622-626, McGuire, D. (2005). At a glance: MGM v. Grokster.
The Washington Post. October 22, 2008, Source:
http://www.washingtonpost.com/wpdyn/content/article/2005/05/03/AR2005
050301028.html

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