Term Paper on "Why Businesses Need Intellectual Property Law"

Term Paper 7 pages (2160 words) Sources: 7 Style: MLA

[EXCERPT] . . . .

right to use the name with reference to any business activity, and registration of the product with any particular label does not provide any legitimate and permanent right and authority of ownership. It is mainly the intellectual property rights, which include trademark law and the law of passing off which has prevented the practices in which previously registered names in businesses. Once the registered owner of any particular name or trademark has information of the duplicity and illegal reference and promotion of their respective brand, without authorized consent, then the owner has two different options, either the authority can rename their signature, or initiate a legal proceedings towards the 'infringement of the trade mark' (Inigo, 2003), and can suit the respondent, and seek financial compensation towards the illegal and unauthorized practice. In past cases, it has been observed that the legitimate registered have renamed the names of their respective products and introduced new trade mark only to avoid legal proceedings, 'these aspects usually need to be changed promptly to avoid legal proceedings for trade mark infringement and payment of the trade mark owners' legal costs'. As per the legalizations and laws, 'owners of registered trade marks have superior rights to identical and deceptively similar trade names that are not registered' (William, 2004), therefore the respective registered owners have the required protection and cover to not only claim and seek the assistance of the law in such issues, and also seek compensation from the respondent. The process of registration has made it difficult for the competitors of the similar product, profession and sector to apply for the similar trade mark for their gain, either of the party will end up in profits and the others in trouble. It has been observed that there are different 'there are significant cost savings relying on trade mark rights to stop a competitor or pirate doing the wrong thing with registered trade marks, as opposed to relying on unregistered trade marks rights and passing off' (James, 2000), because the law has provided full defense to the registered owner, and has disallowed any other business, of similar or dissimilar nature, to proceed further with the unethical and illegal duplicity of the registered trade mark and name.

Discussion

In United States and other developed countries of the world, there are four and more major intellectual property laws i.e. copyright law which has provided safeguard to the product, work and contribution of the individuals and group, Patent law that has protected 'new, useful, and non-obvious inventions and processes, Trademark law that has provided legitimate protection to the 'words, names, and symbols used by manufacturers and businesses to identify their goods and services' (Inigo, 2003). The next law is Trade Secret Law, as per which, the owner has the privilege to ensure secrecy of confidential and valuable information, and the registered authority is under no legal and moral obligation to publicize those details and specification. With reference to the business activities related to the multimedia software and programming, the copyright law plays fundamental and protective role to minimize the activities related to the illegal adoption and application of resources and techniques without any prior consent in written as per legal requirements. In this regard, copyright law is a federal law and the law does not vary from country to country, although the interpretation varies from place to place. The law of copyright offer legal and judicial coverage and protection to the individuals and group 'for works of authorship' (James, 2000). with particular reference to the multimedia developer and software, the copyright laws provide comprehensive and concrete protection to the related activities and work that include 'novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, computer software, software manuals, training manuals, manuals, catalogs, brochures, advertisements, and compilations such as business directories' (Inigo, 2003), musical works i.e. songs, lyrics and composition. The copyright laws also provide substantial assistance, support and protection to the 'dramatic works that includes plays, operas, and skits' (Thomas, 2006). 'Pantomimes and choreographic works i.e. ballets, modern dance, jazz dance, and mime' (Inigo, 2003) works are also protected through such copyright regulation. Beside, the copyright regulation incorporate different 'pictorial, graphic, and sculptural works including photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art' (Inigo, 2003). The given references and examples provide solid protection and legal authority to the prosecutor.

The imposition of the Intellectual Property rights is regarded as the 'sanctioning of the existence of private monopolies' (Edward, 2004), and there have situations in past where the Intellectual Property law has 'itself condemned conduct on the part of Intellectual Property owners, or excuses otherwise infringing activity on the part of Intellectual Property defendants expressly for the purpose of promoting competition' (William, 2004). Under such situations where the element of the anticompetitive harm is diluted, as per the provisions of antitrust law, it is the defendant who has legally inherited and captured the 'power over a well-defined market'. There have been several such instances where the provisions of the antitrust law have been exercised, in particular there have been cases in which 'the misuse of doctrines has been practiced and exercised in patent and copyright law'. There have been continuous arguments with reference to the expected social costs which include the error costs towards the anticompetitive practices, the debate is based on the argument that the 'Intellectual Property may be low in comparison with the expected anticompetitive harm from ruling for Intellectual Property plaintiffs' (James, 2000), therefore the rulings of the cases of Intellectual Property have enhanced welfare, and are mostly less concerned 'than the antitrust courts about the expected costs of false positives, that is, cases wrongly decided against the party defending the allegedly anticompetitive conduct. The comprehensive approach towards such issue has brought different grievances with reference to the provisions of the Intellectual Property, and the rights of the business community, 'and it sometimes may be appropriate for courts to excuse IP defendants from liability, in order to avert relatively speculative threats of anti-competitive harm' (William, 2004).

As per the injunctions of the Intellectual Property law, and the clauses of the Agreement on Trade Related Aspects of Intellectual Property Rights, different countries and regions have agreed to some of the 'licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology' (William, 2004). As per the draft of the agreement, the members countries have to specify the legislation with particular reference to the 'licensing of the practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market'. The provisions and legislations have evolved pro-competitive doctrines with reference to the Intellectual Property, as per which, the court has applied the doctrine of misuse to compensate the grieved party with the Intellectual Property rights, 'which are unenforceable until the plaintiff purges that misuse' (William, 2004). The court has on different accounts stated that, 'the application of different principles stand valid on the part of Intellectual Property owners towards sufficiently anticompetitive to constitute misuse, even though the same conduct would result in antitrust liability, if at all, only upon proof of additional elements including market power' (Keith, 2003). On several business cases, the court has excused the defendants, and has prevented them from any liability, and this has been done through the application of the 'merger or fair use doctrines in contexts in which the copyright owner's exercise of exclusive rights, often in some aspect of its computer software, might impede competition in a related market' (Brinson, 1994). In the trademark law, the doctrine of functionality has permitted the Intellectual Property defendants 'to copy a trademark owner's distinctive product design, notwithstanding the potential for consumer confusion, if inter-alias the copying is justified by competitive need' (Brinson, 1994), thus provide the defendant is able to convince the court of the need and circumstances which required the adoption of such contradictory measures, the practices of the defendant can be justified, and these practices stand valid and legal. Business activities are certainly curtailed by the two different justification towards the Intellectual Property law, based on the 'comparatively loose conceptualization of markets and competition' (Keith, 2003), and this is referred to as, 'beyond the scope" and adjudication cost rationales'. The terminology of 'beyond the scope' has brought additional privilege to the court to excuse the defendants of the Intellectual Property from any warrants, penalties and restrictions, and has 'enabled the IP owner to control subject matter that the Intellectual Property laws themselves, presumably for reasons bearing some relation to competitive need, relegate to the public domain, beyond the scope of the Intellectual Property owner's rights' (Edward, 2004). The justifications with reference to the non-rigid 'conceptualization of markets and competition' (Thomas, 2006) of the Intellectual Property law encompass markets and competition, which are further referred to… READ MORE

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