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44 Cards in this Set

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What is intellectual Property?

Creations of the mind


E.G. Ideas, inventions (patents), books, music, poetry, films (copyright) and signs (trademark)

What are the two meanings of property?

*Ownership (title)


*Property = the thing itself

Intellectual Property is a chose in _________

Chose in ACTION = intangible

Can intangible copyright be dealt with in the same way as tangible property?

Yes


E.G. bought, sold, gifted, licenced/left in will etc

Can intellectual property be used by many people simultaneously?

Yes

What are some/the six statutory Acts that covers Intellectual Property?

* Copyright Act (1994)


*Trade Marks Act (2002)


*Patents Act (2013)


*Designs Act (1953)


*Plant Varieties Act (1987)


*Layout Designs Act (1994)

What does the Copyright Act (1994) set out?

*Creates statutory regime for the protection of authors


*Last for 50 years + life of author


*Symbol = © = copyright arises automatically


*There is NO registration system (in NZ)



What does the Trade Marks Act (2002) set out?

*Creates a registration system - s5 of Act defines a trademark as a sign


*International Classification system for goods & services (NICE)


*Lasts for 10 years or forever (if you keep paying)


*Can have unregistered marks - often marks that wont pass criteria for registration = no protection

What does the Patents Act (2013) cover?

*Protects idea & inventions


*Lasts 20 years


*registration system


*inventions and industrial processes

What does the Designs Act (1953) cover?

*Industrial designs such as patterns on carpets and china/pottery


*Registration system


*Lasts 15 years

What does the Plant Varieties Act (1987) cover?

*Plant varieties (patents for plants)


*Lasts 20-23 years (depending on the plant)

What does the Layout Designs Act (1994) cover?

*protects circuits for electrical equipment


*Lasts 5 year + 2 renewals = 15 years total

What are the two Non-statutory way to protect Intellectual Property?

*Breach of Confidence (equitable action)


E.G. Coco v Clark


*Tort of Passing off

What are the 3 steps you need to price there was a breach in confidence?

1) Serious information (not trivial)


2) information was in confidence


3) Harm is caused at the expense of another

What is the Tort of Passing off?

Where a trader passes off good as those related to another business with greater reputation.


E.G. An older product on a shelf with a reputation is next to another similar product. Customers may get confused.

What is a "Negative Right"?

The right to prevent others from doing certain things. (mandatory injunction)

What does "Territorial" mean?

National law. Does not apply overseas, only in NZ

What does it mean to be"Registered& Unregistered"?

Some rights must be registered to become effective (e.g. patents & designs).



Is there a registration system for Copyright?

No

What does it mean to commercialise or exploit your intellectual property?

Collect royalties by buying, selling, licencing or franchising.


E.G. Copyright licence, Patent Licence, Trademark user agreement

What is the purpose of the Copyright Act (1994)?

Prevent the unauthorised reproduction by a third party of another's work.

What does s14 of the Copyright Act (1994) state?

*Copyright is a property right


*Exists in accordance with the Act - as interpreted by the courts

For something to be "original" in terms of the Copyright Act (1994), it must ____________

Not be copied (s14 of the Copyright Act (1994))

What are some/the 5 most important categories of works?

*Literary


*Dramatic


*Musical


*Artistic


*Sound recordings & Films

Is there registration requirement for copyright?

No! There is no registration system. Copyright comes into act as soon as the work is produced

How long does copyright last for?

The length of the authors life + 50 years

Copyright does not exist in literary or dramatic or musical unless and until ___________

the work is recorded, in writing or otherwise

Does the creator of the work have to be an NZ citizen or resident or company or a citizen or resident or company of a recognised country?

Yes

Is there and aesthetic requirement of a product?

No

Is there a requirement of quality, merit or professionalism of a product?

No

What does s15 of the Copyrights Act (1994) state?

All works have to be recorded

What is an "Artistic Work"?

Graphic work including painting, drawing, diagram, map, plan, blueprints, advertisements, prototypes and things made from them

What are the copyright owners rights?

The right to copy or make copies, perform the work, translate it, transform it (book -> play)


UNDER s16 of Copyright Act (1994)

What are the three principles of primary infringement?

*Causal connection - link between original & copy


*Objective similarity - doesn't have to exact copy


*Substantial copying - features being copied

What is the House of Spring Gardens v Point Blank Ltd (1983) case about?

Oversaw the making of a bulletproof vest, was copied and replicated = breach

What is the Beckmann v Mayceys Confectionary case about?

Two companies who manufacture and sell lollies in the shape of a crocodile. The two products were similar

What did the courts hold in the Beckmann v Mayceys Confectionary case?

If the two artists sketch the same common object necessarily there will be a close resemblance. But each product had been designed independently.


Anyone was free to make a model of a crocodile and use it to make moulds so long no copy respondent's model or a substantial part of it.

What is the Wham-O Mmanufacturing v Lincoln Industries (1984) case about?

The Plaintiff were the original owner of a Frisbee and they had an agreement with Toltoys (Australian company) who then secretly gave information about the Frisbee to Lincoln Industries. Lincoln registered the trademark without permission from Wham-O

What did the Courts hold in theWham-O Mmanufacturing v Lincoln Industries (1984) case?

Wham-O, being an American company, sent their legal team to New Zealand and was entitled to damages for every disc sold in the past 6 years. As well as a Mandatory injunction to get Lincoln's 'Frisbee' trademark removed from the register

What Equitable remedies are there for a Breach in the Copyright Act (1994)?


*Injunction


*Delivery up of infringing copies


*Account of profits

What are Equitable Remedies always?

Always discretionary (The court can choose)

What Common Law Remedies are there for a Breach in the Copyright Act (1994)

*Damages

What Criminal Prosecutions are there for a breach in the Copyright Act (1994)?

Criminal Liability - More serious than damages/injuntions

Can you trademark colours?

Yes


E.G. Cadbury Chocolate = purple