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Intellectual Property Reviewer

Intellectual Property Reviewer

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Published by lex libertadore
Intellectual Property Law Reviewer
Intellectual Property Law Reviewer

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Published by: lex libertadore on May 15, 2009
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10/03/2013

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Allan Verman Ong
 
Intellectual Property Law: Cram Another Day
 SY 2002-2003
Intellectual Property Law
RA 8293
-
for the protection of creative works/intangible goods (goods that are expressions of the mind)
-
framework: “What are they really protecting?”TangiblesInventionsPropertyPatentsUtility ModelsIndustrial Industrial DesignsPropertyTrade SecretsIntangiblesTrade MarksCreativeCopyrightsRightsNeighboring RightsPatents – grants by the State given to someone so he will have monopoly right over his property
-
in exchange for you revealing something
1)new, 2) useful, and 3) has an inventive step
, stategives you protection
-
Utility Model – no inventive step so lesser right and protection but it is still useful
-
Industrial Design – has an artistic/aesthetic appealTrade Secrets – anything that will provide business with
competitive advantage
,e.g. list of customers of marketing company
-
not protected under the IP Code, but governed by contractse.g. employee contractsTrademarks – don’t protect innovation, protects
goodwill
-
specific mark on goods – trademarks, servicemarks, certification marks, geographic indicators,trade names, trade dress
-
even if not registered, as long as there is goodwill, you can sue
-
a “business identification system”
-
before Jan. 1, 1998, RP used first to use system (whoever uses first has the trademark) with anexception to internationally known marks (e.g. Lacoste case)
-
now, RP is a first to file jurisdictionQ. Before Jan. 1, 1998, an RP company registered Lacoste trademark, used it. It was first to use. Lacostefiled trademark infringement suit. It was proven that the brand was already known in RP by people who hadtravelled to Europe. Since RP is first to use jurisdiction, RP company has trademark?A. No. Falls under internationally known marks exception
1
 
Allan Verman Ong
 
Intellectual Property Law: Cram Another Day
 SY 2002-2003
Q. McDo came to RP in 1970. In 1980s, they had huge marketing campaign so they became known in RP. BigMack was a large hamburger chain in the provinces. In 1980, McDo filed trademark infringement case. It wasproven that some people actually think Big Mack is affiliated with McDo and was creating confusion.A. Big Mack wins. Trademark protects goodwill. McDo’s goodwill was established in 1980. It was proven herethat Big Mack was already established in RP before McDo became known because of the mktg campaign.Q. You have carinderia, “Cooking Ina Mo”. Neighbor sets up “Cooking ng Ina Mo Rin.” Trademark infringement?A. Maybe not. It does not cause/create confusion.Creative Rights – protect
unique expression
of an idea1.copyright – moral right- what is protected is unique expression of an idea. So Einstein’s e=mc
2
is notprotected, but the dissertation where he explained the idea is protected.2.neighboring rights – performer’s rights
-
what is protected is not idea but distinct/unique expressionTechnology Transfer Agreements – e.g. licensing.Aside from patents, copyrights, there are other means of protecting property in other nationsQ. Do intangibles have to be registered to enjoy protection?A. Generally, industrial property must be registered. No need to register in creative rights – the moment youcreate it, it’s yours. Registration of books in the National Library is only proof of copyrightUS – computer programs are protected by patents. In RP, only copyright.International Treaties Protecting Copyrights1.Berne Convention – for protection of literary works, established in Aug. 1, 1951.Core Principles:1.national treatment – nationals from different states should have protection of their own works2.principle of automatic protection – no need to register copyrights3.principle of independence of protection – treat foreigners the way you protect nationals2.TRIPS Agreement – Trade Related Aspects of IP Rights, a sub-agreement of the GATT,Principles:1. Establishment of minimum standards of protection as to enforcement of IPR transnationally2. National treatment – of the IP owner3. Most favored nation principle – treat all signatories similarly, no special treatment should be givento any nationQ. When can you not invoke copyright?A. When there is: 1. Conflict with normal exploitation of work2. When it prejudices the right of legitimate owner of right of workIssues:
copyright protection like Mickey Mouse are gradually entering public domain (since copyright lasts until 50 years after the death of creator) so there are moves to extend the term protection
but Shakespeare works are public domain – so is extending term a good thing?
-
US passed the Sonny Bono copyright extension act3.WIPO Copyright Treaty - ratified Feb. 2002, protecting rights of authors in new technologies
2
 
Allan Verman Ong
 
Intellectual Property Law: Cram Another Day
 SY 2002-2003
-
new technologies include internet and digital works
-
now, temporary copies are protected (temporary – something you download from internet)
-
new rights are created:1.right to distribution2.rental right – right of author to rent out cinematic works, phonograms, computer programs- you can’t rent out your copy of Windows 2002 CD. But if your Palm Pilot breaksdown and you rent a Palm with Windows, it’s okay, since computer program isn’t the“thing of rent”3.right of communication to public – wire/wireless meansPrinciples:1.circumvention of technology measures – e.g. DVD contents handling system2.concealment of infringement – search and seizure is given in civil cases
-
before, state files for search warrant, now, since civil case, private party can file for searchwarrant and get injunction3.protection is granted from the time of creationNOTE: WIPO treaty is already ratified but still need enabling legislation, either in the form of new law ofamendment of the IP Code
PART IVTHE LAW ON COPYRIGHT 
Copyright
 – 
is a bundle of rights e.g. JKR can sell various rights like right to publish (Scholastic), right to make a moviefrom her story (Warner), right to make toys from characters (e.g., Mattel)
 – 
a “negative right” since it prevents you from enjoying, deriving benefit
 – 
property protected is “intellectual”
 – 
use consists of derivative rights, e.g. reproduction, translation, dramatizationQ. Database, is this protected?A. Facts alone are not protected (same for multimedia). But if you do some arrangement on the information,that is protected.Q. Creativity = Originality?A. No. In copyright, what is important is originality. As long as it is yours, it is protected.List of Ateneo Grads – public domainList of Ateneo Grades who worked in Judiciary – protected 
if someone else rearranges your list and does your list in alphabetical order – you can sue 
if there is distinction in the way the facts were selected, coordinated, arranged and presented,copyrightableNovelty – an essential element in patentability
-
means that no one else in the world has come up with the same invention anywhere, anytime
-
not the same with originality, although in both, you come up with a new idea
-
if you develop it without outside influence, you can copyright. Several people can own thecopyright but only one person can hold the patentS
EC
. 171.
EFINITIONS 
.
- F
OR
 
THE
 
PURPOSE
 
OF
 
THIS
A
CT 
,
THE
 
FOLLOWING
 
TERMS
 
HAVE
 
THE
 
FOLLOWING
 
MEANING
:171.1.
"A
UTHOR 
 
IS
 
THE
 
NATURAL
 
PERSON
 
WHO
 
HAS
 
CREATED
 
THE
 
WORK
;
3

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