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Chapter

Cover Contemporary Intellectual Property

16. Passing off  

This chapter examines the action of passing off, that is, the means by which one trader may prevent another from misleading customers by misrepresenting (or ‘passing off’) goods or services as emanating from the former party. It analyses the key elements of goodwill, misrepresentation, and damage, as well as considering extended passing off by reference to multiple examples of groups of producers seeking to protect the goodwill associated with their products. It concludes with discussion of key issues regarding the future of passing off, in particular in relation to the internet and its possible development as a law against unfair competition.

Chapter

Cover Intellectual Property Law

28. Ownership, Exploitation, and Infringement: Registered Designs and Supplementary Unregistered Designs  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter focuses on who is entitled to apply for a design registration as well as the rules relating to ownership and exploitation with respect to registered designs in the UK and unregistered Community designs. It also discusses infringement and exceptions in the three harmonized systems. It begins by considering the question of who is initially entitled to a design, citing entitlement under the UK Registered Designs Act 1949. It then turns to assignment and licensing, the optimal period of protection for a design, and the British approach to infringement. Finally, the chapter examines exceptions and defences that are available when dealing with design protection.

Chapter

Cover Intellectual Property Law

30. Design Right  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter focuses on the unregistered Design Right as a means of protecting designs in the United Kingdom under Part III of the Copyright, Designs and Patents Act 1988. It begins by considering the subsistence of the Design Right, with emphasis on the requirement that there be a ‘design’ and exclusions to design protection by the unregistered design right. The chapter then discusses issues of ownership, duration, and infringement as well as the defences that are available in cases of infringement of unregistered designs.

Chapter

Cover Contemporary Intellectual Property

12. The power of a patent  

This chapter deals with who is entitled to be a patentee, the rights that a patentee enjoys (which are some of the strongest within intellectual property law), the circumstances in which infringement actions might be brought, the defences that are available, and some points on exploitation practices. A key thread is the construction and interpretation of the patent and the inextricable link between the power conferred by the patent and questions of novelty and obviousness. This chapter also looks at sufficiency, the circumstances in which a patent may be revoked, and the risk of a claim for revocation of the patent.

Chapter

Cover Intellectual Property Law

46. Breach and Defences  

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.

Chapter

Cover Contemporary Intellectual Property

15. Trade marks 3: relative ground for refusal and invalidation, infringement, and defences  

This chapter discusses the relative grounds for refusal or invalidation of a registered trade mark, the circumstances in which a trade mark can be infringed, and defences to an action of infringement, both at national level for UK trade mark registrations and at EU level for the EU trade mark. As relative grounds and infringement overlap, these are considered together. After introducing the relative objections and grounds of infringement generally, the chapter considers what constitutes infringing ‘use’ of a sign. The chapter then runs through the three grounds of infringement/relative objections, looking first at double identity, then likelihood of confusion, then infringement of marks with a reputation. The chapter concludes with a discussion of the principal defences.

Chapter

Cover Intellectual Property Law

41. Trade Mark Defences  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter is about the various defences that are available to a person who has been accused of infringing a trade mark under the Trade Marks Act 1994. A prominent limitation on the scope of protection, which operates defensively, is whether the defendant has made a legally relevant use of the mark. Besides this, the defendant is excused if the mark has been used (i) as the defendant’s own personal name or address, (ii) for descriptive purposes, or (iii) to indicate the intended purpose of a product or service. These three uses are subject to a proviso testing for whether the use has been in accordance with honest practices in industrial and commercial matters. Additional defences facilitate comparative advertising and permit parallel importation via the exhaustion of the trade mark owner’s rights upon first sale. The chapter concludes by considering how expressive interests and the freedom of expression are balanced against trade mark rights. It also reviews the defence of honest concurrent use.

Chapter

Cover Intellectual Property Law

9. Defences  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter deals with the exceptions that a person may invoke in defence when sued for copyright infringement. Most of these exceptions are referred to as ‘permitted acts’ in Chapter III of Part 1 of the Copyright, Designs and Patents Act 1988 (CDPA 1988). The chapter begins by introducing six concepts that feature in many of the exceptions set out in the CDPA 1988: fair dealing, non-commercial use and not-for-profit users, lawful use, sufficient acknowledgement, relationship with contract, and dealings with copies made under exceptions. It then discusses the exceptions relating to non-commercial research or private study; text and data analysis; criticism or review; quotation and parody; disclosure in the public interest; uses of works for people with disabilities; public administration; databases, computer programs, and electronic programs; and artistic works and broadcasts.

Book

Cover Intellectual Property Law

Stavroula Karapapa and Luke McDonagh

Intellectual Property Law aims to provide a comprehensive text on all aspects of this field. The first part looks at the complexities of copyright law, from authorship and first ownership to infringements and defences. It also covers moral and related rights. The second part looks exclusively at passing off. Then the text turns to trade marks. It examines the absolute grounds for refusal and the relative grounds for refusal of registration. It looks in detail at infringement and loss of registration of trade marks, and this part of the book ends with an examination of defences to trade mark infringement. The next part is about patents. After an introduction to patents the text analyses ownership and infringement of patents. The text then moves on to confidential information, in other words, trade secrets. Designs are examined after this. The final few chapters are about the exploitation and enforcement of intellectual property. The text concludes.

Chapter

Cover Intellectual Property Law

5. Defences  

This chapter looks at the relevant statutory and non-statutory defences to copyright infringement. Defences against copyright infringement usually take the form of the so-called exceptions and limitations to copyright, which are meant to enhance and maintain a balance of interests between copyright holders and users. Exceptions allow individuals to carry out an exclusive act in relation to a copyright work, without asking authorisation from the copyright holder and without having to pay remuneration. Limitations, on the other hand, allow individuals to carry out an exclusive act in relation to a copyright work in return for paying remuneration to the copyright holder. The chapter then sets out the principal general copyright defences — which are discussed under the umbrella term of ‘fair dealing’ — and indicates which categories of work are covered by which defence and the requirements attached to each.

Chapter

Cover Contemporary Intellectual Property

16. Passing off  

This chapter examines the action of passing off, ie the means by which one trader may prevent another from misleading customers by representing (or ‘passing off’) goods or services as emanating from the former party. It analyses the leading judicial definitions of passing off, from which emerge the key elements of goodwill, misrepresentation, and damage, as well as considering extended passing off by reference to multiple examples of groups of producers seeking to protect the goodwill associated with their products. It concludes with discussion of key issues regarding the future of passing off, in particular in relation to the internet and its possible development as a law against unfair competition.

Chapter

Cover Contemporary Intellectual Property

12. The power of a patent  

This chapter deals with who is entitled to be a patentee, the rights that a patentee enjoys (which are some of the strongest within intellectual property law), the circumstances in which infringement actions might be brought, the defences that are available, and some points on exploitation practices. A key thread is the construction and interpretation of the patent and the inextricable link between the power conferred by the patent and questions of novelty and obviousness. This chapter also looks at sufficiency, the circumstances in which a patent may be revoked, and the risk of a claim for revocation of the patent.

Chapter

Cover Contemporary Intellectual Property

15. Trade marks 3: relative ground for refusal and invalidation, infringement, and defences  

This chapter discusses the relative grounds for refusal or invalidation of a registered trade mark, the circumstances in which a trade mark can be infringed, and defences to an action of infringement and their limits. As relative grounds and infringement overlap, these are considered together. Important additional legal issues on infringement—such as what constitutes infringing ‘use’ of a trade mark—are also considered. Key questions are the power conferred by a trade mark over the activities of others and the extent to which activities of others can prevent the registration of a trade mark. Again, the chapter reflects evolving legislation at an EU level (particularly the EU’s 2015 trade mark reform package), together with a rich body of case law.

Chapter

Cover Intellectual Property Concentrate

2. Copyright  

This chapter defines copyright as arising whenever a work is created under qualifying conditions. The Copyright, Designs, and Patents Act 1988 (CDPA) defines eight types of work that fall under two categories: works that must be original or ‘authorial works’, including literary works, dramatic works, musical works, and artistic works; and works that need not be original or ‘entrepreneurial works’: films, sound recordings, broadcasts, and the typographical arrangement of published editions. Copyright is infringed by copying or communicating the whole or a substantial part of a work—referred to as primary infringement—or by dealing in infringing copies of a work—referred to as secondary infringement. There are some major and many minor defences to copyright infringement including the ‘fair dealing’ defences and the public interest. Many aspects of copyright law have been harmonized by the European Union.

Chapter

Cover Intellectual Property Concentrate

8. Designs  

This chapter discusses designs law, which is a collection of legal rights that can protect designers of products from having the appearance or shape of their products copied, or give them a monopoly over the commercial exploitation of a shape. Designs law is not about any literary or musical content recorded on a product—that will be protected by copyright. Similarly, the underlying technological ideas may be protected by a patent. In the UK, copyright in designs cannot be used to prevent designs for everyday, functional articles from being copied; only artistic designs can be protected by copyright. Design right protects non-artistic designs and registered designs, and protects designs which are new and of individual character by a monopoly right that lasts 25 years. Registered designs law has been harmonized by the European Union.

Chapter

Cover Intellectual Property Law

14. Defences to trade mark infringement  

This chapter looks at the various defences against trade mark infringement and the way in which the courts have interpreted them. A defendant's principal argument will be to deny that there has been any infringing conduct, and/or that what has been done is not within the scope of protection given to the registered mark. There are, however, a number of statutory defences. These defences span from the use of one's own name to a framework outlining the conditions of comparative advertisement and the role of exhaustion of rights as a defence to an action for trade mark infringement, including the ways in which the intellectual property owner can object to the parallel importation of non-European Economic Area (EEA) goods.

Chapter

Cover Intellectual Property Law

4. Copyright III:Infringement, Exceptions, and Database Right  

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 discusses the circumstances in which an owner’s economic rights may be infringed and the exceptions and limitations to copyright infringement, including fair dealing for research and private study, reporting current events, criticism or review, and quotation. The chapter explores recent cases relevant to these exceptions and how the UK’s departure from the EU may affect judicial interpretation and how technological protection measures interrelate with copyright exceptions. It also examines the sui generis database right.

Chapter

Cover Intellectual Property Law

8. Trade Marks III:Defences, the Loss of a Trade Mark, and Exhaustion of Rights  

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 considers the limitations of the protection afforded by trade mark registration. It discusses the defences to infringement set out in Article 6 of the Trade Marks Directive and section 11 of the Trade Marks Act 1994; trade marks and comparative advertising; the ways in which it is possible to lose registered trade mark protection (through revocation and a finding of invalidity); and how trade mark rights might be exhausted.

Chapter

Cover Intellectual Property Law

9. Breach of Confidence  

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.