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biz law notes on property law

By ohjasm Sep 19, 2014 2579 Words
Intellectual Property Rights (RC Pg 192)

Trade Marks

s2
A trademark is a visually perceptible sign capable of being graphically represented and which is capable of distinguishing goods and services provided by one business from that provided by another. Sign includes matters such as letter, word, name, signature, numeral, label, color, shape, aspect of packaging or any combination thereof. There is a need to register the trademark. Grounds for refusal of registration

s7(1)b

s7(1)c

s7(4)

s8(1)

s8(2)

s8(3)
provides that if the mark is devoid of distinct character, then registration would not be allowed. If it is not distinctive, it cannot be registered. provides that if the mark is indicative of the kind, quality, quantity, intended purpose, value, geographical origin or time of production or other characteristics of the goods and services, then it cannot be registered. Exceptions to s7(1) and s7(2)

If the trademark has acquired a distinctive character as a result of use made of it, registration may nonetheless be allowed.

provides that if the trademark is contrary to public policy or is intended to deceive the public, registration may be refused. A trademark shall not be registered if it is identical with an earlier trade mark and the goods or services for which the trade mark is sought to be registered are identical with the goods or services for which the earlier trade mark is protected. A trademark shall not be registered if because —

(a) it is identical with an earlier trade mark and is to be registered for goods or services similar to those for which the earlier trade mark is protected; or (b) it is similar to an earlier trade mark and is to be registered for goods or services identical with or similar to those for which the earlier trade mark is protected, there exists a likelihood of confusion on the part of the public. A trademark which —

(a) is identical with or similar to an earlier trade mark; and (b) is to be registered for goods or services which are not similar to those for which the earlier trade mark is protected, shall not be registered if — (i) the earlier trade mark is well known in Singapore;

(ii) use of the later trade mark in relation to the goods or services for which the later trade mark is sought to be registered would indicate a connection between those goods or services and the proprietor of the earlier trade mark; (iii) there exists a likelihood of confusion on the part of the public because of such use; and (iv) the interests of the proprietor of the earlier trade mark are likely to be damaged by such use. Infringement of trade marks

s27(1)

s27(2)

s27(3)
A person infringes a registered trade mark if, without the consent of the proprietor of the trade mark, he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered.

A person infringes a registered trade mark if, without the consent of the proprietor of the trade mark, he uses in the course of trade a sign where because — (a) the sign is identical with the trade mark and is used in relation to goods or services similar to those for which the trade mark is registered; or (b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered, (c) there exists a likelihood of confusion on the part of the public.

A person infringes a registered trade mark which is well known in Singapore if — (a) without the consent of the proprietor of the trade mark, he uses in the course of trade a sign which is identical with or similar to the trade mark, in relation to goods or services which are not similar to those for which the trade mark is registered; (b) the use of the trade mark in relation to those goods or services would indicate a connection between those goods or services and the proprietor; (c) there exists a likelihood of confusion on the part of the public because of such use; and (d) the interests of the proprietor are likely to be damaged by such use. Consequence of infringement

s31

s32

s33

s46
s49

Action for infringement If the proprietor of the trademark proves an infringement he may seek an injunction and further obtain damages or an account for profits made Order for erasure, etc., of offending sign He may also ask for a court order to remove any infringing sign Order for delivery up of infringing goods, material or articles or for delivery up of infringing copies Counterfeiting a trade mark could amount to an offence

Importing or selling, or keeping in possession for the purpose of trade or manufacture, goods with falsely applied trade mark could amount to an offence Parallel Imports
Parallel import refers to the process whereby a person seeks to sell goods or services, which are subject of a trademark (or copyright or patent) without the consent of the proprietor of that trademark (or copyright or patent) in Singapore, but with the consent of the proprietor in another country. Such Parallel imports do not amount to an infringement under the Trades Mark Act (s29), or Copyright Act (s25(3)) or the Patents Act (s66(2)). Duration of Registration

A trademark is an item of property (s36) and may be assigned (s38) or licensed (s42). Stated simply, assignment is similar to selling a property whereas licensing is similar to renting it out. Duration of the trademark is valid for ten years and thereafter it may be renewed for further periods of ten years (s18) Protection of well-known trade marks: Article 6bis of Paris Convention, etc. (s55) provide that pursuant to the Paris Convention or the Trips Agreement, the proprietor of a well known trade mark in a convention country may restrain by injunction the use in Singapore in the course of trade a similar or identical trademark if such use is likely to cause confusion.

Patents
The idea behind patents is to protect inventions. There is a need to register the patent. The right to apply for the patent lies with the inventor or joint-inventors (s19). However, generally unless the contract provides otherwise, (s50(5)), an invention made in the course of employment by an employee belongs to the employer and in such a case, it would be the employer who is entitled to apply for the patent (s49) Criteria for Registration – As stated in s13 in the Patents Act, in order for a patent to be registered, it must establish that 1. the invention is new (s14(1) , (2))

2. it involves an inventive step (s15)
3. it is capable of industrial application (s16)
Duration of Registration
A patent is valid for 20 years, subject to payment of renewal fees (s36). A patent, like a trademark, is an item of property (s41) and may be assigned (s41) or licensed (s53). Infringement & Protection

(s66) provides the situations in which the patent may be infringed. If a person without the consent of the proprietor of the patent makes, uses or imports the invention, that would amount to an infringement. Defenses for infringements such as acts are done for private and non-commercial purposes (s66(2)) or if they are done for experimental purposes (s66(2)) or if they are used for services of the Government (s61). Consequence of Infringement

If an infringement can be proven, the proprietor of the patent may be entitled to an injunction, damages, account for profits and/or an order for the delivery up of infringing materials (s67). However, infringing a patent in this manner does not result in criminal liability. International Protection

The proprietor only gets protection in Singapore. He would to register individually in those countries or seek to register in other countries thorough the provisions of the Patent Co-operation Treaty, which is an international agreement that Singapore has assented to.

Registered Designs
Designs are governed by the Registered Designs Act 2000. A design refers to features of shape, configuration, pattern or ornament applied to an article by any industrial process. It is also provided that if the features of the shape or configuration were solely determined by the function of the article, then that design would not be capable of registration. (s2)

s5 the design must be new
(1) Subject to the provisions of this Part, a design which is new may, upon application by the person claiming to be the owner, be registered in respect of an article specified in the application. (2) A design for which an application for registration is made shall not be regarded as new if it is the same as a design — (a) registered in respect of the same or any other article in pursuance of a prior application; or (b) published in Singapore or elsewhere in respect of the same or any other article before the date of the first-mentioned application, or if it differs from such a design only in immaterial details or in features which are variants commonly used in the trade. (3) The Registrar may, in such cases as may be prescribed, direct that, for the purpose of deciding whether a design is new, an application for registration of the design shall be treated as filed on a date earlier or later than that on which it was in fact filed. Duration and Rights

Once Registered, the design is valid for five years and may be extended for a second and third period of five years by paying extension fees (s21). The proprietor of the registered design has the right to make in Singapore or import into Singapore or sell or hire any article in respect of which design is registered (s30). In addition, the registered design, just like the trade mark and patent is an item of property and may be assigned or licensed (s32). Infringement

(s36) if someone tries to make, import, sell or hire out any article in respect of which the design has been registered without the consent of the proprietor of that design, an action may be brought to recover the damages or account for the profits and an injunction may be granted. (s40) an order of delivery up, (s41) and disposal of infringing articles may be made. There are no criminal liabilities imposed for such infringements under the Act. International Protection

It will only be protected in Singapore if it is registered under the Registered Designs Act. The proprietor would have to register in the countries he seeks to be protected.

Copyright
The law of copyright does not seek to protect ideas, facts or information. Instead it seeks to protect the form of expression of those ideas, facts or information.

There is no need to register for copyright protection. It is automatic. However, two conditions must arise. Copyright only exist in respect of certain types of matters and secondly, there must be some connection between the author or the maker and Singapore. Copyright only in certain matters

Two Broad Categories
Works
subject Matter other than Works

Works refer to original literacy, dramatic, musical, and artistic works. Originality does not refer to the novelty or something inventive. All that is needed is that the work must not be copied from another work and must be as a result of one’s skill, labor and judgment.

s7A of the Copyright Act states that literary works includes compilations in any form and computer programmes. However, there is no exhaustive definition of what amounts to a literary work. Literary Merit is not relevant. To qualify as a literary work, the contents must be able to offer information or pleasure oir instruction to the reader. A name, title would be difficult to qualify. Sinanide v La Maison Cosmeo (1928) the court held that the advertising slogan was too short to attract copyright protection. Other literary works include books, poems, lyrics, brochures, catalogues, newspapers, forms, documents, letter, directories and even emails.

It must be noted that for matter nor listed in the Copyright Act, there is NO copyright. There is no copyright over one’s face or voice. Thus if a photograph of a celebrity is taken for an advertisement, the celebrity cannot complain of breach of copyright but if it is defamatory, he may have rights under the tort of defamation.

Connection in Singapore
The second pre-condition id that there must be some connection to Singapore. This means that the author must have been a Singapore citizen or resident of Singapore at the time of creating the work or the work must be first published in Singapore (s27).

In relation to sound recordings or cinematograph films, it must first publish in Singapore by a holder of broadcasting license (s88). For cable programs, this means the work first be published in Singapore or the publisher must be a Singapore citizen, resident or corporation (s91) For live performances, the performance must take place in Singapore or the performer must be a Singapore citizen or resident (s246)

Duration of Copyright
s28(2) Authors works’ namely literary, dramatic, musical and artistic works generally copyright extends for the duration of the life of the author plus 50 years. s28(3) However if the work is yet to be published, performed in public, broadcast or included in a cable program before the author’s death, copyright extends to 50 years after the work was first published, performed in public, broadcast or included in a cable program. s92-95 & 246 Sound recordings, cinematograph films, broadcasts, cable programs and live performances, duration is generally 50 years after the work was first published, performed in public, broadcast or included in a cable program. s96 published edition of author’s work, copyright extends to 25 years after the first edition was published.

The ownership of copyright
See RC Pg 203

Rights conferred by copyright
26. — (1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right — (a) in the case of a literary, dramatic or musical work, to do all or any of the following acts: (i) to reproduce the work in a material form;

(ii) to publish the work if the work is unpublished;
(iii) to perform the work in public;
(iv) to broadcast the work;
(v) to include the work in a cable programme;
(vi) to make an adaptation of the work;
(vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in sub-paragraphs (i) to (vi); (b) in the case of an artistic work, to do all or any of the following acts: (i) to reproduce the work in a material form;

(ii) to publish the work in Singapore or any country in relation to which this Act applies, if the work is unpublished; (iii) to include the work in a television broadcast;
(iv) to include the work in a cable programme; and
(c) in the case of a computer program,
to enter into a commercial rental arrangement in respect of the program unless the program is not the essential object of the rental.

Defenses and Infringement and Consequence - See RC Pg 204

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