Practical Application Of Intellectual Property Law In The UK: An Essay.

Copyrights, Patents, and Trademarks

The paper shall specifically and particularly deal with the practical application of Intellectual Property Law operating Within UK and resolution of the issues so structured in the underlined case studies and the facts sheets so attached. The major consideration and focus shall be upon three primary and major intellectual property, Copyrights, Patents and Trademarks. The paper shall also assess and evaluate the procedure for applying for this intellectual property in the light of the Legislation specifically dealing with them and other relevant grounds for the approval or rejection of the Intellectual property rights therefore.

1. The legislation that shall be concerned and referred to for resolving the issues of the ownership of the copyright between the employer and the employee would be the Copyright, Patent and Trademarks Act of 1988 operating in the United Kingdom. 

The issue that shall be resolved and settled in this very part of the summative assessment is whether the act of installation of the employee Morgan in which she created a work of art using her novel shape holding fabric supplemented with the ClickClock video shall be recognised and acknowledged as copyrighted work or not?. It shall be decided in the light of some basic essentials and  underlying factors and ingredients of copyright as mentioned and descripted in the legislation of the year 1988. The basic requisites and essentials for duly recognizing and acknowledging the Copyright are presented herein. A work has to be identified in original in the sense that it should clearly exhibit and indicate the author’s intellectual creation. In this case as far as the fashion industry is concerned in which the corporation operates and the professional capacity of the Employee is concerned, it could be reasonably drawn and inferred that the installation of Morgan and creation of the work of art novel to any conventional means and an unique shape shall be deemed to be protected by virtue of the Copyrights Act of the year 1988 operating in the Jurisdiction of United Kingdom. 

(SI, Brompton Bicycle Ltd v Chedech/Get2Get, C-833/18 11 June 2020): It was held by the court of law that designs which are dictated by the technical function are eligible to be protected as copyrights.

2. Taking into consideration the general principles, considerations and rules of the Copyrights Law not particular to the Jurisdiction of United Kingdom, Registration of the expression so published is necessary to get the benefit of copyright protection and to be entitled for exclusive rights over the work. As far as the legislation provisions of United Kingdom is considered, it could be reasonably drawn that the creation of the work and publication thereof is considered sufficient and adequate for the purpose of getting protected under the Copyright law and the same cannot be denied acknowledgement on any other grounds except, what has been provided under the copyright ,aw of United Kingdom. In this case also, the creation of the work by Morgan being the employee of the corporation and the Publication and expression of the same through virtual means shall entitle the corporation herein referred to as the Monteiro to be protected under the provisions of the Copyright law but only problem which could arise in such a case is effective redressal in the case of any infringement by the stranger and third parties of the protection so held by the first, true and rightful owner of the Copyrighted work so created herein by Morgan. By considering the facts and circumstances of the case which has been analysed and assessed in this case, the intent to register the work on the part of the rightful owner of the copyrighted work is missing and no inference of the same could be made therefore. This fact facilitates the ground and premise that as the breach of the copyrighted work was committed before it was acknowledged as being protected, the owner of the copyrighted work shall possess a deficient right therefore for suing for infringement despite the fact of ipso facto acknowledgement by virtue of the Copyrights legislation 1988.

Issue of Copyright Protection for Installation of Morgan's Work

3. Installation of new shapes as been discussed in the above readings strongly supports the essential ingredients for being recognised as Copyrighted work and therefore entitled to the protection from being copied or used without the lawful and  express consent of the owner of the work. The essentials as discussed in the Copyrights act of 1988 has been satisfied and duly fulfilled which is evident from an assessment of the facts so mentioned in the case study presented herein. As the work has been created by the employee Morgan of the Corporation, herein named as Monteiro Corporation the issue that shall be settled herein, is the ownership of the copyrighted work. In the cases wherein during the continuance of valid and legal employment under an entity, any work is created for commercial purposes and not solely out of personal aims and objectives for satisfaction of personal objectives, the ownership of the copyrighted work shall lie with the employing organization and the same could not be challenged by the employee on any grounds, except for unlawful domination and other alike factors which rebut the legal employment status and capacity of the employee therefore. In this case, Morgan was under a legal employment of Monteiro Corporation and therefore, the wok so created was for the sole aim and objective of increasing the monopoly rights and privileges of the corporation and the profit margins therefore. It shall be evident and sufficient for the purpose of granting the ownership to the Employing organization which could not be solely possessed by the employee, herein Morgan therefore. The rights of ownership to the copyrighted work shall be in this case in the hands of the employing corporation and not of the employee of the corporation.

B) 1. As far as the patentability in this case study is discussed and concerned, the same shall be discussed in the light of the Patents Act of 1977 operating Within UK and the same shall be discussed accordingly. Section 1 of the concerned act shall be the major provision which shall be referred to and concerned for determining the patentability of the Electric shapeshifting fabrics. Section 1 of the Legislation discusses the essential and underlying ingredients which shall be considered prior to approval of the patents and the procedures involving the registration is deal with under another provisions of the same legislation. A patent in respect to any invention shall only be granted and approved if certain mandatory essentials are fulfilled so mentioned and discussed herein. A patent may be granted only in the case where the invention is new and novel, an inventive step is involved for the closure of the invention, it is capable of industrial application and the grant of the patent is not exclusively debarred by specific subsections of the legislation so stated and provisioned herein. Section 2 of the same legislation shall also be discussed in the case for deciding the presence of novelty and newness in the invention of the creator and eligibility to be fit for seeking the patent protection in respect of the invention so done. A critical evaluation of the facts of the case study and the invention of Morgan is considered it shall be to be sufficing and fulfilling the requisite sections of the legislation and shall be recognised as the patent, by duly considering the relevant sections and other terms of the legislations under discussion. The critical evaluation of the legislation which has been specifically and particularly referred for answering the issue which has been raised herein, it can be reasonably drawn and inferred that in order to seek the approval and confirmation for the grant of Patent it shall be necessary and mandatory for the applicant to apply for the same and thereafter the probability of the grant of patent shall be considered by the Registrar who is solely responsible for granting the patent after following the procedure so mentioned in the legislation. The sections of the legislation which deals with the Procedure of application for the grant of patent protection and the approval or rejection of the same by the office of registrar is detailed, discussed and described herein. The sections that Primarily deal with the procedure of the grant of patent commence from Section 14 and proceed further detailing the duties and obligations of the applicant as well as the publishing of the statement of object and reasons by the third party in reference to the objection to the patentability for the applied invention and the possibility of Public and professional prejudice and exploitation therefore. 

Patentability of Electric Shapeshifting Fabrics

Prior consideration of the sub issue and concern mentioned herein, as the conduct of Stephanie of publication and mockery of the invention of the Morgan is related, the same shall not be the subject of any wilful aggression and cannot be In any way punished and shall not provide any ground for filing any suit of civil nature for violating the patent rights and infringement of the corporation rights therefore. The major reasons which shall be construed and underlined for deriving such conclusion and result shall be the disability of the inventor to claim any right over the breach and violation so aggressed by Stephanie. Patent does not require express publication and for the same reason it shall be duty of the applicant before the Comptroller of Patent office to apply at the earliest given opportunity and follow and comply with the procedure for the grant which although not absolutely entitles the protection of the applied invention but provides and affords an opportunity to apply to the civil court having jurisdiction to deal with the Intellectual Property matters and seek stay on any such actions which shall have the potential to materially prejudice the interests of the applicant in the case of Patent being granted and approved by the Comptroller office. 

Considering an discussion of the second issue which majorly deals with the claim of ERL Outdoors. This claim shall  hold good but only in the case of applicant applying for the grant of Patent and statement of Object and reasons shall be filed duly by the ERL Outdoors corporation by the virtue of Patents Act before any grant is considered by the Comptroller office, solely responsible for acknowledgement of the approval of the patent application or rejection therefore. The claim shall be based on the ground of having existing similarity which defeats the essentialities under Section 1 of the Patents Act and may refute the application prima facie by the Comptroller office and the registrar therefore but only when an active application is made by the corporation therefore.

2. If the fabric is considered to be patentable in this case the ownership of the same shall lie with the Employer herein referred to as the Monteiro Corporation and entity but the rights shall also lie with the employee and the rights of the assignment of the patent shall be with the employee of the corporation who has originally created the work, herein Morgan. 

This part of the whole assignment shall deal with the provisions of the Trademark Law operating in the Jurisdiction of United Kingdom and the recognition to be eligible for the grant of Trademark status and registration therefore. 

The issues shall be resolved on the basis of a detailed analysis and evaluation of the relevant provision of the Trademarks Act of 1994 and primarily the essentials so discussed in the legislation for eligibility if being granted the Trademark rights and acknowledgement therefore. 

Except for the Well-Known Trademarks,, which are considered to be the ipso facto acknowledged and registered by the State irrespective of the fact of no voluntary application for registration, Registration plays a major role in deciding and determination of the grant of the trade mark and in the case of failure to apply for the trademark grant no recognition shall be made except for the extra ordinary situation so mentioned and stated above. 

After consideration of the facts and the general principles, rules and elements of the Trademark law it could be drawn and concluded that the trademark application of Craig shall be entitled to be registered and acknowledged the major and underlying reason for the same being the Uniqueness and novelty in the name so chosen for opening a restaurant cum café. Although the fact which can be drawn after analysing and assessing the Trademark rules and laws operating in the United Kingdom Jurisdiction, the ultimate decision shall be upon the Registrar after considering the grounds for the refusal of trademark. The prima facie concern and ground which shall be assessed by the registrar for considering the grant or non-grant of Trademarks is the ability and competency of the words, any designs or letters or numerals, colours or signs to be graphically distinguished from one undertaking to that of another already existing entity and undertakings. 

Mattel v. Zynga : The sign shall be capable of being registered as convey the meaning of the products in regards to which the business is set up.

(Reber v OHIMT-304/06): The sign shall be capable of depicting the commercial origin of the product for which the corporation is set up.

Gerson v OHIM(T-201/06): Distinctive character of the sign to be registered is mandatory for the scope of avoiding the similarity with other registered trademarks. 

Grounds for the Refusal of the Trademark shall also be considered herein, for deciding and determining the grant of the Trademark acknowledgement to Craig in the light of Section 3 and Section 5 of the Trademarks Act of 1974. Section 3 deals with the absolute grounds for the refusal of trademark which are detailed herein: 

i. Signs and other graphical representations which refute and defy the essentials and relevant section of the Trademarks Act, 1974.

ii. Trademarks devoid of any distinctive identification.

iii. Trademarks and signs and other graphical representations which exclusively indicates the design, quality time of production, designated quality of the product and intended business of the corporation.

iv. Signs and other graphical representations and indications which are used as being customary in the Business language and restricts the reasonability therefore of other business activities.

v. Any other derogation which refutes the basic aims and objectives of the Trademarks Act, 1974. 

Relative Grounds under Section 5 for Refusal of Trademarks: 

i. Signs and graphical representations which is identical and similar to already existing trademarks.

ii. The existence of possibility of Unfair prejudice to the existing trademarks. 

These are the basic grounds of refusal which shall be considered for deciding the extent of registration of the trademarks.  

(Reber v OHIM T-304/06)

(SI, Brompton Bicycle Ltd v Chedech/Get2Get, C-833/18 11 June 2020) 

Gerson v OHIM (T-201/06) 

Mattel v. Zynga 

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