Case Study Analysis: Infringement Of Trademark And Telecommunication Act By Logistic Developer

1.Critically discuss models and frameworks in relation to Internet law, trust and security
2.Understand the role of Intellectual property Rights relating to the Internet
3.Critically assess various legal frameworks, theories and models with regard to IT.
4.Conduct critical, legal, risk assessment through the use of cases.
5.Produce written work demonstrating a level of critical thought and understanding appropriate to M-level study and research.
6.Ensure that submitted work is correctly referenced and conforms to accepted standards of academic integrity.
 

Issues Engraved under the Case Study

The case study is evolved with Prince William (defendant) and the civil claimant. Considering the subject matter of the case it has been observed that the defendant was an employee of the claimant’s company, which was dealing with delivering goods and services to the other companies. It has been observed that the defendant was working there and assisted Ben to make logistic growth for the company. However, a spat has been taken place in between the two when Mr. Ben has discovered that the defendant is trying to infringe the trademark of his company and use the same to gain his own profit. It was contended by the claimant that the defendant has made a breach regarding the provision of Trade Mark act 1994 and Telecommunication Act 1984.

The case is based on several legal principle and norms. It has been observed from the abstract of the case study that there are certain issues that have been cropped up regarding the same. Considering the case study, it is required to be determining the following issues that are engraved under the case study:

• Whether the logo of the claimant’s company was under the provision of the Trademark Act or not 

It is clear from the case study that Prince William has been appointed for the post of logistic developer of the claimant’s company. The logistics developers are dealing with the technical substances of a company and preparing the system design for the company. They are also obliged to edit all the information and data for the company (Hallett 2017). Therefore, the defendant has enough scope to steal the data from the alleged company and use the same inappropriately. Further, it has been stated the defendant has threatened the claimant when the claimant regarding the information and trademark of the company asked him. According to the Trademark Act, no person is allowed to imitate the logo of a company in his own business and in case they are gaining from using the logo, they will be liable under this Act. However, before getting these facilities, it is important to bring the logo of the company under the supervision of Trademark Act. It has also been stated by the claimant that the defendant has abused him in rough language and act differently with the claimant. The provisions of the Telecommunication Act will be applied if the activities of the defendant are violating the principles of the Act. In my opinion, the activities of Prince William is required to be analyzed critically before hold him criminally liable for all those offences and therefore, it is required to be analyzed the provisions of the acts and take a close vigil regarding the same. However, considering the terms and conditions for the above-mentioned Act, it is also required to be stated that the provisions of the Act regarding Protection from Harassment Act 1997 and Telecommunication Act is needed to be verified and proper amendment is necessary for specify the terms of the crime and held the wrongdoer liable for the offence.

Analysis of Trademark Act

 The case is a hypothetical one and the same is not pending or adjudged by any court. Therefore, the reasoning of the case will cover an explanation regarding the activities of the defendant and a process to find out what activity is attracting the provisions of the alleged legislations contended by the claimant regarding the same.

Trade Mark is a part of the intellectual property law, where any person is held liable if they used the trademark of other business in their business with an intention to gain profit thereto (Bently and Sherman 2014). Trademark is a sign that helps a company to be identified it graphically and distinguishes it regarding its goods and services from the other companies operating in the market. However, the term trademark not only deals with the designs only, they are dealing with the letters, numbers and packaging shape (Blackett 2016). However, if a company wants to accuse other for violating any trademark provision, the company is required to be registered the marks of its own first. According to section 2 of the Trade Mark Act 1994, when a company has registered the trademark, that mark becomes his own property and if any person violate that rights, he will be held liable for the acts he committed, as that will be treated as an infringement to the provisions of Trade Mark Act (Abbott and Tyler 2017). It has been mentioned under the Act that no claim cannot be made if the infringement has been conducted over an unregistered mark. However, it is not understood from the case study that whether Ben has registered the trademark of his company. There are certain provisions under which the registration process of a trademark can be refused:

• If the trademark reflects any idiosyncratic character;
• If the trademark reflects the value or purpose of the business or if the quality and quantity of the produced goods can be verified from the trademark;
• If the sign or letter of the trademark reflects any customization regarding the language of the country or any tribe

Further, certain grounds of refusal has been made under section 4 of the Act where it has been mentioned that no company is allowed to reflect the sign of any arms or Royal armorial bearings in their logo to develop the base of the business. Additionally, no company is allowed to represent the emblem of the royal family in their business and should not gain profit by showing the name of the Royal family by any means (Seaman 2015). Trademark is the exclusive rights of the owner and he is free to make other liable in case anyone tries to infringe the provisions of the Act or anyone copies the mark of him and tries to gain illegal profit from the same. This provision has been stated under section 9 of the Trademark Act 1994. It has been stated under section 10 of the Act that no person is allowed to use any sign that is same and identical with the trademark of other company. Further, the party is guilty if he imitates the trademark of a company with knowledge that the same is similar to the trademark of any other company. This Act prevents a person to make any advertisement regarding the same trademark and the other party could not make any additional profit by using the same trademark in regards to profess any business. However, the provisions of the Trademark Act will not be applied in case where the registration process of the previous trademark has not registered properly or where the registration process conducted by the previous party has attracted the provisions of section 47(6) of the Act (Moore 2017). It has further been stated by the trademark Act 1994 that if any person uses his own name and address, the same also not to be comes under the lights of the violation of the Trade Mark Act. This provision has been mentioned under section 11 of the Act. However, according to the provision stated under section 16 of the Act, the claimant should have to define the subject of infringing goods regarding the facts of the case and it is their liability to define which rights are violated by the acts of the infringement maker.

Analysis of Telecommunication Act

The Telecommunication Act is one of the parliamentary Acts that has been operated in England and certain industrial rules regarding the company has been mentioned under the Communications Act 2003 (Marino 2017). This Act restricts any person who is using the telecommunication system inappropriately and causing harm to any person by using any means that are particularly falling under the examples of telecommunication. According to section 43 of the Telecommunication act 1984, if any person sends any message through the public telecommunication system, if the acts of the person have intended to outrage the modesty of any person, he will be held liable under this Act (Wright et al. 2015). Additionally, if the offender has misuse the medium of the telecommunication with an intention to menacing the character of the other person, the wrongdoer will be held liable under the Act. A person will also held liable if the acts of the person cause annoyance to other or any message send by the person has caused serious anxiety to other, the person will be treated as an infringer under rules and provision of the Act. According to section 43(1) of the Act, the person will be sentenced up to six month or can face fines for the same on proving all the guilt under this section. However, proviso to this rule has been mentioned under section 43 (2) of the Act, no person will be held liable if he has made all the things during the course of a programming service (Howard 2017). The definition and nature of the programming service is required to be fall under the criteria of the Broadcasting Act 1990. Under section 27A of the Act, it has been mentioned that the director of the telecommunication will provide the standard of the act that will fall under the provision of the Act and no person is allowed to do any sub-standard work regarding the same. However, it has been mentioned under section 42 (2) that a person will not held liable if his activity is attracting the criteria mentioned under section 297 (1) of the Copyrights, Designs and Patent Act 1988. Under this section, it has been mentioned that if a person dishonestly receive any program and misuse the broadcasting, he will not be liable under the Telecommunication Act, rather he will be adjudged under the Copyright Act or Broadcasting Act (Samani et al. 2015). Therefore, it is required to be analyzing the activities of Prince William and then has to decide whether his activities come under the provision of the Telecommunication Act or not. It has further to be observed in this respect that the activities of the wrong doer is required to be analyzed in a particular way to identify all the statements to hold the defendant guilty of the offence or free from all the allegations made against him.

Conclusion

Considering the above noted facts of the case, it can be stated that the activities done by the defendant are required to be proved by the claimant. The defendant has charged under those offences, but all are needed to be established by the claimant. It has been observed in Wilkinson v Downton [1897] EWHC 1 (QB), [1897] 2 QB 57 that any intentional infliction regarding the mental shock could be treated under the provision of the intentional tort and the offender or the wrongdoer in this case should have to provide compensation if his guilt has been proved. Further, it has been observed in Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781, that every person should do all the acts that a prudent person is doing and should not violate any of the provisions that cause distress to anyone. In this case, it has been observed that the activities that are done by the defendant has created psychological imbalance to the claimant and all the threats have caused mental damage to him. However, until the claimant does not prove the allegations, it could not be said that Prince William can be trialed for the same. The court has to interpret the provisions of the cases rightfully and required to be proved all the reasonable grounds properly (Sciarini 2015). The burden is on Ben, the claimant to prove all the statements and conducts done by the defendant. Both the civil and criminal provisions are imposed upon the case and the claimant can either prayed compensation from or can file criminal case against him. However, in my opinion, all the guilt are required to be proved first and the defendant should have to get a fair chance to show his own contention in the case. 

The case of Ben v Prince William is significant to certain extent. There are certain legislations annexed with this case. It has been stated that the acts of the defendant has attracted the provisions of the Telecommunication Act, as it has been alleged that defendant has threatened him over email and phone (Korkodeilou 2015). Further, it has been contended that the defendant is using the trademark of claimant’s business and delivering the goods of defendant’s company to the other companies through the trademark. Therefore, it is to be stated that the defendant should be tried with the provisions to this regard. According to the civil provision, if the offender has failed to maintain the standard duty of care, he will be held liable under the Tort Act (Vishnubhakat 2016).

It is to be advised to the defendant of the case, Mr. Prince William that he should have to maintain certain precautions regarding this effect and should have to collect all the substantial evidence to prove his innocence, so that he can produce all these things before the court.

• Collect all the information whether the logo of the claimant’s company was registered or not;
• Notify the name of the companies to whom the defendant has supplied the goods after being separated from the claimant;
• All the details regarding the transaction money;
• All the telecommunication statements that has been made in between him and the claimant, if possible.

In this case, it has been observed that Prince William was an employee under the victim’s company and he was holding the post of logistic manager of the company. During the course of business, he cheated his boss and illegally obtained important information from the company. His acts come under the purview of criminal offence. It has been contended by the claimant that the defendant has made a violation regarding the Protection from Harassment Act 1997. It was alleged by the claimant that when the defendant was caught doing the same and asked for the showing the cause, defendant has started threatening the claimant and started to call him in odd times. All these activities of the defendant, Mr. Prince William is assumed to violate the legal provision of the afore-mentioned legislations.

The main issue of the case is to determine

• Whether the activities of the defendant has violated the legal provisions of the above mentioned legislations or not

It is matter to be proved that whether the activities of the defendant are fall under the category of Protection from Harassment Act 1997. The claimant is obliged to prove the burden that whether the activities of the defendant are attracting the object of stalking behavior or anti-social behavior or not. The term stalking denotes the behavior that makes the victim psychologically harassed. Further, anti-social behavior are intending to harm the interest of the victim by violating the basic rights of the victim. It is to be considered whether the acts of the defendant in this case have made any violation regarding the rules mentioned for these terms. Threat a person illegally with a saying to finish his life is falling under the criteria of stalking or anti-social behavior.

Protection from Harassment is a parliamentary Act, which gets the Royal assent on 21 March 1997. The victim is required to prove certain following terms or ground in order to attract the provisions of this Act. The grounds can be categorized as follows:

It has been mentioned that the victim should have to prove the fact that the wrongdoer has harass the victim and the nature of the harassment is stalking (Kelleher et al. 2015). Further, it is to be proved that the nature of the behavior can be attracted the grounds of the anti-social type and this Act will particularly deal with all these criteria. However, one small proviso has been inserted in this Act where it has been mentioned that the provision of this Act can be applied to anything that causes any distress to anyone. It has been mentioned under section 1 of the Act that no person is allowed to pursue any kinds of conduct that concludes in any harassment to other. If a person commits the same thing with knowledge that this kind of act can harass the person or make him distressed, the conduct will also fall under the category of this Act. If any person held liable for the offence provided under this section, he will have to face penalties that is mentioned under section 2 of the Act (Rung et al. 2016). It is important to mention here in the case that the provision of the section can be applied in case of civil cases too. If any person defame others or causes losses or injuries to other, those activities will fall under the criteria of tort. The term tort represents any wrong that is civil in nature. According to this Act, it is the duty of every human being to maintain his or her standard of duty and care. No person is allowed to cause any harm to other. There are several provisions that are laid down under this Act (Sheridan, Scott and Nixon 2016). If any activities of a person demolish the personality of others or if the acts of any person cause any annoyance to other, the nature of the same could be regarded as civil, rather criminal. If the victim wants to receive certain compensation from the wrongdoer only, he may file the civil case against the wrongdoer. An order of injunction can be obtained against the wrongdoer to this effect if the activities of the wrongdoer fall within the provisions of section 3(6) of the Act. It has been mentioned under section 4 of the Act that if any person put any people in fear of violence, or threatened him by using disgraceful words, he will be held liable under this Act. In this case, the nature of the offence will be criminal (Bettinson and Bishop 2015). Therefore, in this case, the victim can take serious action against the wrongdoer and the court can imprisoned him for the offence he has committed. If any person, during his course of conduct, creates any annoyance to other and the nature of his behavior will fall under the criteria of stalking, the person will be held liable for the same. This provision has been mentioned under section 4A of the Act (Clarke et al. 2016). The term stalking includes any criminal intimidation that causes psychological injury to other person. The kinds of stalkers have been mentioned under the Act that includes rejected stalker, resentful stalker, intimacy seeker, incompetent suitor and predatory stalker. A person can be treated as resentful stalker if he has any grievance against the victim. 

It has been observed that the conducts of the defendant has attracted the provisions of the Protection from Harassment Act 1997 when the defendant is using telecommunication media to make threat call to the claimant. However, it is to be observed that the nature of the Act can be either civil or criminal (Horsman and Conniss 2015). Further, if the offender has done all the offences with an intention to cause mental harassment to the victim, he will be liable for causing intentional tort. The case of Blyth v Birmingham Waterworks Company that has been cited before is an important case to this effect as the definition of the negligence has been defined broadly in this case. Further, with the citation of Wilkinson v Downton, it can be stated that if the allegations has become proved, the defendant should be held liable, as he has all the knowledge regarding the harassment and he has done all these things intentionally. 

Under this section, it can be advised to William that he have to find out any police complaint has been made against him or not. Further, he needs to collect all the recorded version of the discussion made within them. 

Reference:

Abbott, H. and Tyler, M., 2017. Safer by Design: A guide to the management and law of designing for product safety. Taylor & Francis.

Ali, C., 2017. Regulatory (de) Convergence: Localism, Federalism, and Nationalism in American Telecommunications Policy. In Media Convergence and Deconvergence (pp. 285-304). Palgrave Macmillan, Cham.

Bently, L. and Sherman, B., 2014. Intellectual property law. Oxford University Press, USA.

Bettinson, V. and Bishop, C., 2015. Is the creation of a discrete offence of coercive control necessary to combat domestic violence. N. Ir. Legal Q., 66, p.179.

Blackett, T., 2016. Trademarks. Springer.

Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781

Clarke, M., Yanson, I., Saleem, Y., Edworthy, R. and Khalifa, N., 2016. Staff experience of harassment and stalking behavior by patients. International journal of forensic mental health, 15(3), pp.247-255.

Epstein, R.A. and Sharkey, C.M., 2016. Cases and materials on torts. Wolters Kluwer Law & Business.

Hallett, R., 2017. Privatization and the restructuring of a public utility: a case study of British Telecom’s corporate strategy and structure. In New Forms of Ownership (pp. 112-133). Routledge.

Horsman, G. and Conniss, L.R., 2015. An investigation of anonymous and spoof SMS resources used for the purposes of cyberstalking. Digital Investigation, 13, pp.80-93.

Howard, G., 2017. Vetting and Monitoring Employees: A Guide for HR Practitioners. Routledge.

Kelleher, I., Wigman, J.T., Harley, M., O'Hanlon, E., Coughlan, H., Rawdon, C., Murphy, J., Power, E., Higgins, N.M. and Cannon, M., 2015. Psychotic experiences in the population: association with functioning and mental distress. Schizophrenia research, 165(1), pp.9-14.

Korkodeilou, J., 2015. Stalking Victims, Victims of Sexual Violence and Criminal Justice System Responses: Is there a Difference or just ‘Business as Usual’?. British Journal of Criminology, 56(2), pp.256-273.

Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts: cases and commentary. LexisNexis Butterworths.

Marino, M.S., 2017. The Problems of the First Mover: The Case of British Telecom. In The Privatisation of European Telecommunications (pp. 127-142). Routledge.

Moore, A., 2017. Intellectual property and information control: philosophic foundations and contemporary issues. Routledge.

Rung, A.L., Gaston, S., Oral, E., Robinson, W.T., Fontham, E., Harrington, D.J., Trapido, E. and Peters, E.S., 2016. Depression, mental distress, and domestic conflict among Louisiana women exposed to the Deepwater Horizon oil spill in the WaTCH study. Environmental health perspectives, 124(9), p.1429.

Samani, M.C., Maliki, J., Rahim, M.H.A., Rahman, M.P.A. and Mustaffa, N., 2015. The media agenda of the new and traditional media in Malaysia: Constructing realities. e-Bangi, 10(1), p.48.

Schwartz, M.S., 2017. Corporate social responsibility. Routledge.

Sciarini, P., 2015. From corporatism to bureaucratic and partisan politics: Changes in decision-making processes over time. In Political Decision-Making in Switzerland (pp. 24-50). Palgrave Macmillan, London.

Seaman, C.B., 2015. The Case Against Federalizing Trade Secrecy. Virginia Law Review, pp.317-394.

Sheridan, L., Scott, A.J. and Nixon, K., 2016. Police officer perceptions of harassment in England and Scotland. Legal and Criminological Psychology, 21(1), pp.1-14.

Torremans, P., 2016. Holyoak and Torremans intellectual property law. Oxford University Press.

Vishnubhakat, S., 2016. An Intentional Tort Theory of Patents. Fla. L. Rev., 68, p.571.

Wilkinson v Downton [1897] EWHC 1 (QB), [1897] 2 QB 57

Wright, C.J., Boucher, R., Casserly, J.L., Cicconi, J., Davidson, C.M., Farquhar, M., Ford, G.S., Gomez, A., Hundt, R.E., Katz, M.L. and Kellogg, M., 2015. Reflecting on Twenty Years under the Telecommunications Act of 1996: A Collection of Essays on Implementation. Federal Communications Law Journal, 68(1), p.44.