Canadian Intellectual Property Review 33 Cipr
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Tort in IPR Rupayan Thakur
CIPRA Internship for December 2020 Tort in IPR A presentation by Rupayan Thakur Page | 1 Tort in IPR Defining Tort A Tort1 is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, injury2 describes the invasion of any legal right, whereas harm describes a loss or detriment in fact that an individual suffers. The primary aims of Tort Law are to provide relief to injured parties for harms caused by others, to impose liability 3 on parties responsible for the harm, and to deter others from committing harmful acts. Torts can shift the burden of loss from the injured party to the party who is at fault or better suited to bear the burden of the loss. Typically, a party seeking redress through tort law will ask for damages4 in the form of monetary compensation. Less common remedies include injunction5 and restitution6. Introduction to Intellectual Property Rights Intellectual Property 7 is the product of the human intellect including creativity concepts, inventions, industrial models, literature etc. Intellectual Property Rights8 (IPR) do not differ from other property rights. They allow their owner to completely benefit from their product which was initially an idea that developed and crystallized. They also entitle them to prevent others from using, dealing or tampering with their products without prior permission from them. They can legally sue them and force them to stop and compensate for any damages. IPR is not a new concept. It is believed that IPR initially started in North Italy9 during the Renaissance10 era. -
NYU School of Law Outline: Trademarks, Barton Beebe
NYU School of Law Outline: Trademarks, Barton Beebe Will Frank (Class of 2011) Fall Semester, 2009 Contents 1 Introduction to Trademark and Unfair Competition Law 3 1.1 Sources and Nature of Rights . 4 1.2 The Nature of Unfair Competition Law . 4 1.3 Purposes of Trademark Law . 4 1.4 The Lanham Act . 5 2 Distinctiveness 6 2.1 The Spectrum of Distinctiveness . 7 2.2 Descriptiveness and Secondary Meaning . 7 2.3 Generic Terms . 8 2.4 Distinctiveness of Nonverbal Identifiers (Logos, Packages, Prod- uct Design, Colors) . 9 2.4.1 Different Tests/Standards? . 9 2.4.2 Expanding the Types of Nonverbal Marks . 9 2.4.3 The Design/Packaging Distinction . 10 2.4.4 Trade Dress Protection After Wal-Mart . 10 2.5 The Edge of Protection: Subject Matter Exclusions? . 12 2.5.1 Exotic Source-Identifiers . 12 2.6 Review . 12 3 Functionality 13 3.1 The Concept . 14 3.2 The Scope of the Doctrine . 15 3.3 The Modern Approach . 15 3.4 Post-TrafFix Devices Applications . 17 4 Use 18 4.1 As a Jurisdictional Prerequisite . 18 4.2 As a Prerequisite for Acquiring Rights . 18 4.2.1 Actual Use . 18 4.2.2 Constructive Use . 19 1 4.3 \Surrogate" Uses . 20 4.3.1 By Affiliates . 20 4.4 The Public as Surrogate . 20 4.5 Loss of Rights . 21 4.5.1 Abandonment Through Non-Use . 21 4.5.2 Abandonment Through Failure to Control Use . 21 5 Registration 22 5.1 The Registration Process . 22 5.1.1 Overview . -
Intellectual Property on the Cyder-Picket Line: a Comment on British Columbia Automobile Assn
934 ALBERTA LAW REVIEW VOL. 39(4) 2002 INTELLECTUAL PROPERTY ON THE CYDER-PICKET LINE: A COMMENT ON BRITISH COLUMBIA AUTOMOBILE ASSN. V. OFFICE AND PROFESSIONAL EMPLOYEES' INTERNATIONAL UNION, LOCAL 378 TERESA SC ASSA• I. INTRODUCTION A recent decision from the British Columbia Supreme Court, British Columbia Automobile Assn. v. O.P.E.I. U., local 378, 1 raises issues of"passing off," trademark, and copyright infringement relating to web sites, domain names,2 and meta tags. 3 In this comment I will explore these issues, all of which may commonly arise in situations of alleged competition between web sites. The case thus provides a context for exploring legitimate and unlawful uses of domain names and meta tags, copyright infringement, and web site design, and it touches on the role of s. 22 of the Trade-marks Act. 4 Because BCAA also occurs in the context of a labour dispute, it raises further issues about intellectual property rights and freedom of expression. These issues have arisen before in the non-Internet labour dispute cases of Cie Generate des Etablissements Michelin Michelin & Cie v. C.A. W.-Canada5 and Rotisseries St-Hubert ltee v. le Syndical des Travailleurs(euses) de la Rotisserie St-Hubert De Drummondville (C.S.N.),6 and their resolution continues to raise serious concerns about the balance being struck between monopolistic intellectual property rights and the fundamental right of freedom of expression. The plaintiff, British Columbia Automobile Association ("BCAA''), a member of the national Canadian Automobile Association ("CAA"), sued the defendant Office and Professional Employees' Union ("Union") over three successive web sites created by the Union to publicize a strike by BCAA employees. -
Contributory Trademark Infringement and Notice
Contributory Trademark Infringement And Notice readiedGood and abysmally. despondent Brainiest Sparky and minimising, unremitted but Hailey Paige denazifies unharmfully her imperils prudence her outjumps Joycean. audaciously Interfertile Orazio or fools forsakes, indiscreetly, his disquiets is Gere untinned? stickles Limelight or password did not take now have registered trademark infringement and contributory notice also known of damage has been caught in civil liability case, whether a chilling the As kind is assets of trademark owners, so trademark owners should be always for management and protection of trademarks. Should include a contributory, but with the majority of this is no knowledge that may never miss out the defendant and contributory trademark infringement notice of. The court denied Napster Inc. This privilege in accordance therewith are not genuine goods or authorises another skin and notice and contributory trademark infringement cases suggest that the products for making it may be relied upon without physical marketplace. Entities it looked at insanly low prices are presenting this infringement and notice sent an injunction: parents are not notice of the. Eleventh Circuit city left across the possibility of loss service providers liable for contributory trademark infringement based on a reason to slim that their services are being used for infringing purposes. In addition, merely using an inline link should always create trademark liability, unless the do something affirmative to medium the impression that reserve are somehow affiliated with or endorsed by peg site to hurricane you are linking. Dmca policy cybernet provides strong of trademark infringement and contributory notice that bright builders had a comprehensive body solutions to match the right and border nature of the infringing. -
Reverse Passing Off: Preventing Healthy Competition
COMMENTS Reverse Passing Off: Preventing Healthy Competition Catherine Romero Wright DILBERT® reprinted by permission of United Feature Syndicate, Inc. I. INTRODUCTION 1 Chad Wayland, a university student, was an avid snowboarder. When he was not on the slopes or involved with homework, he was waxing his board or experimenting with adjustments to it in his garage. Eventually, Chad discovered that some of the adjustments that he had * Associate, Perkins Coie, Seattle; J.D. 1996, Seattle University School of Law; B.A. 1986, Stanford University. I would like to thank my husband, Daniel Wright, for all of his support, my daughter, Monica Romero Wright, who was with me throughout the process of writing this article, and Peter Schalestock for all of his help and encouragement. 1. This hypothetical is loosely based on a case that was filed in the District Court, Western District of Washington, in 1995. Seattle University Law Review [Vol. 20:785 made to his board really improved its performance. His snowboarding friends noticed it too. Chad ended up with a small garage business, fixing up snowboards for his friends and their friends. One day, a Japanese corporation approached Chad and asked if he would sell them a few of his modified snowboards. Knowing that this was an excellent opportunity to develop a business that he really loved, Chad accepted the offer. He purchased twenty snowboards from the Slide Corporation, modified fifteen of them, and sent the entire batch to the Japanese corporation. The Japanese corporation was impressed with his modified board. It ordered 200 more and offered to pay a very large amount. -
International Choice of Law in Trademark Disputes from a Territorial Approach to a Global Approach
EDOUARD TREPPOZ, INTERNATIONAL CHOICE OF LAW IN TRADEMARK DISPUTES, 37 COLUM. J. L. & ARTS 557 (2014) International Choice of Law in Trademark Disputes From a Territorial Approach to a Global Approach By Edouard Treppoz* INTRODUCTION It has been observed that international choice of law in trademark disputes reveals a tension between law and economics.1 From an economic perspective, marks can be exploited on a worldwide scale, and their value may be based on the global market. From a legal perspective, however, the rules are less than uniform. Law does not recognize one worldwide mark. Many trademarks are granted on a local basis, within local protective regimes that are independent of one another. Although the market has become global, the legal protection remains local. This tension has increased with the advent of the Internet. First, the universal access technology provides seems to reduce the relevance of a territorial approach and increase the need for a global economic approach. Second, the Internet has contributed to the creation of certain globally powerful companies. Those companies use, and benefit from, the universality of technology to make services available all over the world. From a technology-oriented point of view, the localized protection of trademark seems parochial. It is likely that the modern world requires a shift from local to international trademark protection.2 Such a shift will not happen quickly. Intellectual property generally and trademark in particular are viewed as means of regulating markets, and the geographic scope of markets has historically been smaller than it is today. Regulation was therefore local and territorial. -
Challenges to Copyrightable Work in Cyberspace
Journal of Intellectual Property Rights Vol 13, January 2008, pp 35-42 Challenges to Copyrightable Work in Cyberspace Subhasis Saha† and Sourav Keshri Hidayatullah National Law University, HNLU Bhavan, Civil Lines, Raipur, Chattishgarh 492 001 Received 24 August 2007, revised 6 December 2007 Copyright has a direct relation to the sphere of cyber space. The Internet poses a large number of problems in the area of copyright protection. These challenges and the problems posed before us have to be tackled with due care and diligence, taking into consideration the situation prevailing in the era of Napster and beyond. The paper discusses the (i) meaning of cyber space, and position of Internet related problem in India, (ii) basic challenges with respect to the intellectual property, (iii) position as to why copyright is ill-equipped to deal with Internet, along with the basic problems of copyright in regard to Internet which includes determination of public and private use and the enforcement of liability, (iv) The Indian scene in regard to jurisdiction in cyberspace and finally (v) the future of copyright. Keywords: Copyrightable work, cyberspace, Napster, liability, reproduction rights, domain names Cyberspace is a virtual world, which technically sector undertaking responsible for providing all exists only in computer memory, but it is interactive international telecommunication services from India and pulsing with life.1 In cyberspace, one can meet to other countries, introduced Internet services on a and talk to new people, read, publish, research, hear commercial scale on 15 August 1995. Before then, music, see video, look at art, purchase and sell things, specific groups had the privilege of accessing access government documents, send e-mail, download Internet, but the total number of users was under software, and receive technical support. -
Introduction to Trademark Law and Practice
WORLD INTELLECTUAL PROPERTY ORGANIZATION INTRODUCTION TO TRADEMARK LAW & PRACTICE THE BASIC CONCEPTS A WIPO TRAINING MANUAL GENEVA 1993 (Second Edition) ( ( WIPO PUBLICATION No 653 (El ISBN 92-805-0167-4 WIPO 1993 PREFACE The present publication is the second edition of a volume of the same title that was published by the World Intellectual Property Organization (WIPO) in 1987 and reprinted in 1990. The first edition was written by Mr. Douglas Myall, former Assistant Registrar of Trade Marks, United Kingdom. The present revised edition of the publication has been prepared by Mr. Gerd Kunze, Vevey, Switzerland, and reflects his extensive expertise and experience in the administration of the trademark operations of a large international corporation, Nestle S. A., as well as his intensive involvement, as a leading representative of several international non-governmental organizations, in international meetings convened by WIPO. This publication is intended to provide a practical introduction to trademark administration for those with little or no experience of the subject but who may have to deal with it in an official or business capacity. Throughout the text, the reader is invited to answer questions relating to the text. Those questions are numbered to correspond to the answers that are given, with a short commentary, in Appendix I. Arpad Bogsch Director General World Intellectual Property Organization February 1993 ( ( LIST OF CONTENTS CHAPTER 1. TRADEMARKS AND OTHER SIGNS: A GENERAL SURVEY 7 1.1 Use of trademarks in commerce . 9 1.2 What is a trademark?. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 9 1.3 Need for legal protection .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 10 1.4 How can a trademark be protected? . -
Intellectual Property Law in Cyberspace
Intellectual Property Law in Cyberspace Second Edition CHAPTER 7 UNIQUE ONLINE TRADEMARK ISSUES Howard S. Hogan Stephen W. Feingold Gibson, Dunn & Crutcher Kilpatrick, Townsend & Stockton Washington, D.C. New York, NY CHAPTER 8 DOMAIN NAME REGISTRATION, MAINTENANCE AND PROTECTION Howard S. Hogan Stephen W. Feingold Gibson, Dunn & Crutcher Kilpatrick, Townsend & Stockton Washington, D.C. New York, NY Intellectual Property Law in Cyberspace Second Edition G. Peter Albert, Jr. and American Intellectual Property Law Association CHAPTER 7 UNIQUE ONLINE TRADEMARK ISSUES CHAPTER 8 DOMAIN NAME REGISTRATION, MAINTENANCE AND PROTECTION American Intellectual Property Law Association A Arlington, VA Reprinted with permission For more information contact: bna.com/bnabooks or call 1-800-960-1220 Copyright © 2011 The Bureau of National Affairs, Inc. Library of Congress Cataloging-in-Publication Data Albert, G. Peter, 1964– Intellectual property law in cyberspace / G. Peter Albert, Jr. -- 2nd ed. p. cm. Includes bibliographical references and index. ISBN 978-1-57018-753-7 (alk. paper) 1. Industrial property--United States. 2. Computer networks--Law and legislation--United States. 3. Internet 4. Copyright and electronic data processing--United States. I. Title. KF3095.A77 2011 346.7304’8--dc23 2011040494 All rights reserved. Photocopying any portion of this publication is strictly prohibited unless express written authorization is first obtained from BNA Books, 1231 25th St., NW, Washington, DC 20037, bna.com/bnabooks. Authorization to photocopy items for internal or personal use, or the internal or personal use of specific clients, is granted by BNA Books for libraries and other users registered with the Copyright Clearance Center (CCC) Transactional Reporting Service, provided that $1.00 per page is paid directly to CCC, 222 Rosewood Dr., Danvers, MA 01923, copyright.com, Telephone: 978-750-8400, Fax: 978-646-8600. -
Passing Off and Unfair Competition: Conflict and Convergence in Competition Law
Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2011 Passing Off and Unfair Competition: Conflict and Convergence in Competition Law Mary LaFrance University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Intellectual Property Law Commons, and the Torts Commons Recommended Citation LaFrance, Mary, "Passing Off and Unfair Competition: Conflict and Convergence in Competition Law" (2011). Scholarly Works. 784. https://scholars.law.unlv.edu/facpub/784 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. PASSING OFF AND UNFAIR COMPETITION: CONFLICT AND CONVERGENCE IN COMPETITION LAW Mary LaFrance" 2011 MICH. ST. L. REV. 1413 TABLE OF CONTENTS IN TRODU CTION ......................................................................................... 14 13 I. TRADITIONAL AND EXPANDED CONCEPTS OF PASSING OFF ............. 1415 II. UNFAIR COMPETITION ....................................................................... 1420 III. CONFLICT AND CONVERGENCE: THREE CASE STUDIES .................... 1423 A. Copycat Products and Comparative Advertising ........................ 1423 B . M erchandising Rights .................................................................. 1428 C. The Latest Battleground: Keyword Advertising ........................ -
Before the U.S. Patent & Trademark Office Alexandria, VA in Re Request for Comments and Notice of Public Meeting on a Prelim
Before the U.S. Patent & Trademark Office Alexandria, VA In re Request for Comments and Notice of Public Meeting on a Preliminary Draft Convention Docket No. PTO-P-2016-0046 on the Recognition and Enforcement of Foreign Judgments Currently Being Negotiated at The Hague Conference on Private International Law COMMENTS OF COMPUTER & COMMUNICATIONS INDUSTRY ASSOCIATION Pursuant to the request for comments published by the U.S. Patent & Trademark Office in the Federal Register at 81 Fed. Reg. 81,741 (Nov. 18, 2016), the Computer & Communications Industry Association (CCIA)1 submits the following comments on the Preliminary Draft Convention on the Recognition and Enforcement of Foreign Judgments currently being negotiated at the Hague Conference on Private International Law. I. Summary Ensuring that judgments obtained by U.S. litigants can be meaningfully enforced abroad is a laudable objective. Insofar as this imposes a reciprocal obligation that U.S. courts enforce foreign judgments, however, important domestic policy choices may be inadvertently threatened. Adherence to the Convention as drafted may risk requiring U.S. federal courts to enforce foreign judgments that do not reflect the balance found in U.S. copyright and trademark law, exposing U.S. companies to exorbitant damage awards and overreaching injunctive relief, often contrary to the general territorial nature of intellectual property rights. For this reason, should the U.S. 1 CCIA represents large, medium and small companies in the high technology products and services sectors, including computer hardware and software, electronic commerce, telecommunications and Internet products and services. Our members employ more than 750,000 workers and generate annual revenues in excess of $540 billion. -
In the United States District Court for the Northern District of Illinois Eastern Division Mirza N. Baig and Blue Springs )
Case: 1:08-cv-04206 Document #: 195 Filed: 09/24/14 Page 1 of 21 PageID #:<pageID> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MIRZA N. BAIG AND BLUE SPRINGS ) WATER CO., ) ) Plaintiffs, ) ) Case no. 08-cv-4206 v. ) ) Hon. John Z. Lee THE COCA-COLA COMPANY, ) ) Defendant. ) MEMORANDUM OPINION AND ORDER Plaintiffs Mirza Baig and Blue Springs Water Co. allege that Defendant The Coca-Cola Company has infringed upon Plaintiffs’ trademark for “Naturally Zero” spring water through its use of the mark “ZERO” in connection with products such as “Sprite ZERO.” Plaintiffs argue under U.S. trademark law and Canadian trademark law that Defendant’s use of the “ZERO” mark results in reverse confusion to consumers. Defendant denies all wrongdoing and has counterclaimed seeking a declaratory judgment that, inter alia, it has neither infringed nor misappropriated any of Plaintiffs’ trademark rights. Defendant now moves for summary judgment, arguing that Plaintiffs have abandoned their trademark for “Naturally Zero,” and even if not, that the mark is not entitled to protection. For the reasons set forth below, the Court grants Defendant’s motion, enters judgment in its favor on Count[s] I of Plaintiffs’ Complaint, and dismisses Count II without prejudice. Case: 1:08-cv-04206 Document #: 195 Filed: 09/24/14 Page 2 of 21 PageID #:<pageID> Facts1 Plaintiff Mirza N. Baig (“Baig”) was the principal, President, and sole owner of plaintiff Bluesprings Water Co. (“Bluesprings”). Def.’s LR 56.1(a)(3) Stmt. ¶ 1. Bluesprings was a corporation organized under the laws of the State of Illinois; it is no longer in good standing with the Illinois Secretary of State office.