This chapter examines the ‘absolute’ grounds for refusing to register a trade mark as set out in section 3 of the Trade Marks Act 1994. It first looks at the reasons for denying an application for trade mark registration before analysing the absolute grounds for refusal, which can be grouped into three general categories: whether the sign falls within the statutory definition of a trade mark found in sections 1(1) and 3(1)(a) and (2) of the Trade Marks Act 1994; whether trade marks are non-distinctive, descriptive, and generic; and whether trade marks are contrary to public policy or morality, likely to deceive the public, or prohibited by law, or if the application was made in bad faith. Provisions for specially protected emblems are also considered.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the ‘absolute’ grounds for refusing to register a trade mark as set out in section 3 of the Trade Marks Act 1994, Article 3 of the Trade Marks Directive, and Article 7 of the European Union Trade Mark Regulation (EUTMR). It first looks at the reasons for denying an application for trade mark registration before analysing the absolute grounds for refusal, which can be grouped into three general categories: whether the sign falls within the statutory definition of a trade mark found in sections 1(1) and 3(1)(a) and (2) of the Trade Marks Act 1994; whether trade marks are non-distinctive, descriptive, and generic; and whether trade marks are contrary to public policy or morality, likely to deceive the public, prohibited by law, or if the application was made in bad faith. Provisions for specially protected emblems are also considered.
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This chapter examines the absolute grounds for refusal of trade marks from registrability, which are found in s. 3 of the Trade Marks Act 1994 (TMA). The chapter lists objections to registrability based on the mark's own characteristics. To be refused registration, the mark should possess some innate quality which prevents registration. For instance, the mark applied for may be descriptive, generic, or it may lack distinctiveness. Marks that go against public policy or marks that are immoral will also be refused protection. The TMA also contains a number of negative objections in contrast to its predecessor, which required an applicant to show that the mark applied for was positively entitled to registration.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the concept of authorship, as it is understood in copyright law, as well as the first ownership of copyright and the various exceptions to this rule. It begins by discussing the author of a work as defined in the Copyright, Designs and Patents Act 1988 before elaborating on the task of determining who the author of a work is, including difficulties raised by joint authorship. The chapter also looks at exceptions to first ownership, including works created by employees, those governed by Crown copyright or made under the direction or control of Parliament, and commissioned works.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the concept of authorship, as it is understood in copyright law, as well as the first ownership of copyright and the various exceptions to this rule. It begins by discussing the author of a work as defined in the Copyright, Designs and Patents Act 1988 before elaborating on the task of determining who the author of a work is. Authorship of literary, dramatic, musical, and artistic works and of entrepreneurial works is then considered, along with joint authorship. The chapter also looks at exceptions to first ownership, including works created by employees, those governed by Crown copyright or made under the direction or control of Parliament, and commissioned works. Finally, it analyses the issue of harmonization with respect to authorship and the position of employed authors.
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This chapter analyses how the law evaluates authorship of copyright works. It is crucial to distinguish between authorship and ownership of copyright works, as the two do not necessarily coincide. The reason for this is that an author may decide to license or assign the ownership of the work to a third party, such as a publisher, in exchange for money, i.e. royalties. In such case, the author would still be classed as the author of the work, but would no longer own the economic rights to control the ‘restricted acts’. Authorship and ownership of copyright works is even more complicated in the case of works that are authored and owned jointly. The definition of a work of joint authorship is very precise — it must not be possible to identify each author's respective contribution. The rights of joint-owners are set out in s. 173(2) CDPA.
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This chapter explains the law on authorship and copyright ownership. The creator of a work is, in principle, its author. There can be more than one creator for a work and therefore also more than one author. Joint authorship arises when more than one creator is involved in the creation of the work and the contribution of each creator can no longer be separated out in the final result. Copyright is a property right and, as such, needs an owner. The general principle is that the author will be the first owner of the copyright in his or her work.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the defences available where a duty of confidence has been breached. It begins by considering the scope of the obligation that must be ascertained to determine whether the duty of confidence has been breached. It then discusses three factors for a breach of confidence to occur: derivation, the defendant’s state of mind, and whether the breach has caused damage. The chapter also tackles secondary liability for breach of confidence before concluding with an examination of the implementation of the Trade Secrets Directive.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the defences available where a duty of confidence has been breached. It begins by considering the scope of the obligation that must be ascertained to determine whether the duty of confidence has been breached. It then discusses three factors for a breach of confidence to occur: derivation, the defendant’s state of mind, and whether the breach has caused damage. It also tackles secondary liability for breach of confidence before concluding with an examination of the Trade Secrets Directive.
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This chapter discusses contemporary law and policy relating to the protection of confidential information, under the common law. It considers the key elements of breach of confidence: the nature of confidential information, circumstances imparting obligations of confidence, and unauthorised use of confidential information. The chapter also considers the increasing impact of the Human Rights Act 1998 (HRA 1998) and the relevance of international perspectives and approaches. The chapter summarises some key cases to give examples of the issues that arise, discusses the evolving relationship between secrecy and innovation, and the impact of other forms of information control and the relevance of freedom of expression.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the action for breach of confidence as it relates to commercial secrets. It first considers the jurisdictional basis of the action for breach of confidence and then discusses the elements for establishing a breach of confidence. The first element is that there must be confidential information; the second element is that the defendant comes under an obligation of confidence; the third element of a breach of confidence requires an unauthorized use of the information to the detriment of the person communicating it. The chapter also reviews the main confidentiality obligations that apply to employees and ex-employees with regards to commercial secrets. Finally, the chapter considers UK implementation of the Trade Secrets Directive and its relationship to breach of confidence.
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This chapter discusses contemporary law and policy relating to the protection of confidential information. It considers the key elements of breach of confidence: the nature of confidential information, circumstances imparting obligations of confidence, and unauthorised use of confidential information. The chapter also considers the increasing impact of the Human Rights Act 1998 (HRA 1998). The chapter summarises some key cases to give examples of the issues that arise (eg in the employment context), discusses the evolving relationship between secrecy and innovation, and the impact of other forms of information control. The impact of Trade Secrets Directive, including post-Brexit, is also discussed.
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This chapter studies breach of confidence. In the United Kingdom, the area of breach of confidence has traditionally been used to protect ideas and information, including trade secrets. The doctrine of breach of confidence is judge-made law, rooted in equitable principles. In consequence, it has developed in a piecemeal, and sometimes contradictory fashion, so that the rationale for the action has not always been clear. Nevertheless, the law of confidence is broad enough in the United Kingdom to encompass: the common definition of a trade secret (commercial, usually technical information); personal, private information which may also have a commercial value (including information which may be protected under the right to privacy under Art. 8 of the European Convention on Human Rights (ECHR)); and information protected by the state. The chapter then looks at the role of trade secrets in intellectual property law and considers the EU Trade Secrets Directive.
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Character merchandising does not have much in the way of specific recognition in UK law. In response, the character merchandising industry has sought legal protection via the adaptation of other intellectual property rights and their application to the merchandising field. This chapter discusses how copyright, trade mark law, and various torts combine to confer legal protection on character merchandising.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter deals with civil and criminal remedies that are available where intellectual property rights are violated. It first considers the civil relief that is available before a trial takes place, namely, interim injunctions and prevention of imports. It then outlines the civil remedies that are available at full trial: final injunction, delivery up or destruction, the awarding of damages, the account of profits, and publicity orders. Finally, the chapter examines the various criminal remedies that intellectual property right holders may avail.
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This concluding chapter explores the means available to the owner of an intellectual property (IP) right — whether a patent, trade mark, design, or copyright — to obtain redress for infringement. The law's exclusionary effect typically occurs by means of the claimant IP owner obtaining one or more remedies from a court against the defendant(s). Common remedies include injunctions and monetary compensation in the form of damages/accounts of profit. It is crucial to comprehend that the court, when granting remedies, attempts to strike a balance between the IP holder's rights and the principles of free competition. The chapter then considers the contexts in which IP rights are enforced and what remedies are available to a claimant before the full trial occurs, and what remedies are available to a successful claimant after there has been a substantive court ruling on infringement. It also looks at the problem of counterfeiting.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter deals with civil and criminal remedies that are available where intellectual property rights are violated. It first considers the civil relief available before a trial takes place, namely: interim injunctions and prevention of imports. It then outlines the civil remedies available at full trial: final injunction, delivery up or destruction, the awarding of damages, the account of profits, and publicity orders. Finally, it examines the various criminal remedies that intellectual property right holders may avail.
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This chapter deals with copyright in computer programs and databases for which the EU Software and Database Directives set special rules, which are implemented in the Copyright, Designs and Patents Act 1988 (CDPA). In addition, it deals with database right, also created by the Directive, which is implemented by the Copyright and Rights in Databases Regulations 1997. There are particular defences to copyright infringement in relation to computer programs that allow decompilation and the development of compatible software. Database right is intended to protect the investment in gathering the data into a database; it does not protect data that is created by the database owner. Database right protects against the extraction or re-utilization of the contents of the database for a period of 15 years.
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This chapter discusses five issues: the availability of patent protection for computer hardware and for computer software (computer programs); copyright in computer software; databases and the sui generis right; the Internet; and semiconductor chip protection.
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This chapter discusses law on confidentiality and trade secrets. It covers the historical development of the law of breach of confidence; the three essential elements necessary in a claim for breach of confidence; remedies for breach of confidence; and the impact of the internationalization of the law of intellectual property.
