🪴 Maixnor WU

Intellectual Property Law

Nov 04, 20254 min read

mostly international and EU law here

Definition of IP

  • Industrial Property → used by companies

  • Copyright → artistic

  • numerous clausus of IP laws → there is a set amount of rules, one cannot make any more intellectual property up

  • 40% of EU GDP is IP related

    • Trademarks
    • Intangible Goods
    • Patents
    • Information

Why Protection

  • problem: hard to create, easy to copy
  • cost of information = cost of copying
    • almost 0 with digital goods
  • moral rights to be associated to ones creation
  • promote creativity
  • downside: monopolies can be formed
  • aquisition: creation
  • only on works, not ideas
  • exclusive rights
  • 70 years after death of creator
  • exception:
    • private copy (not selling/passing on)
  • sources of copyright
  • what is protected? literary, scientific and artistic domain
  • what is not protected? news
  • creators/authors can only be humans (monkeys do not have copyright)
    • also companies cannot create copyright (but they get it anyway through employment contract), but still individual stays the creator
    • authorship cannot be given away, just the usage rights/license
  • Permitted Acts
    • reproduction for private use → private copy
    • accidental copy → music video running in background of video
    • quote → as long as you quote the source it is fine

Trademarks

  • aquisition: registration (with fee)

  • examples: Adidas logo, Nike swoosh, Mercedes star

  • communication between company and consumer (reputation of manufacture)

    • indication of origin/manufacture

  • protects the consumer → being sure of what you are buying

  • protects the company → safeguarding your reputation

  • EU trademark laws as well as 27 member state trademark laws

  • EU has its trademark office

  • Austria has patent office, doing patents and as well trademarks → confusing

  • WIPO Madrid System → up to 126 countries

  • trademarks can last forever (while paying all the fees)

  • what is a trademark exactly?

    • distinctiveness
    • can be put on register
    • words, names, letters, numerals, colors, shapes, packaging, sounds
    • combinations

  • grounds of refusal

    • lack of distinctiveness (generic terms, descriptive signs)
    • contrary to public policy (nudes)
    • functional shapes (LEGO bricks are not trademarked)
    • misleading/deceiving character (Hungarian salami made in Austria)

  • trademark is only applicable to trade (playing/costumes not affected)

  • marking goods and services

  • protect against use by others

    • opposition by trademark owners
      • identical / similar
      • likelihood of confusion for public
      • earlier trademark has reputation

Patents

  • aquisition: registration

  • pro:

    • moral → protecting the creator
    • innovation → better patents, more innovation
    • disclosure → publishing patents leads to disclosure

  • cons:

    • costs
    • unjust enrichment (large companies)
    • developing countries → exploitation of poorest

  • EU does not have unified Patent Laws

  • European unified patent court exists (not EU)

  • what is protected?

    • capable of industrial application
    • todo

  • requirements

    • technical invention → something new
    • novelty → not part of state of the art
    • inventive step → can it be built

  • ownership

    • first to register wins
    • granted for limited number of years (20 years standard)
      • fair protection with pharmaceuticals if bringing drug to market takes time
    • employee (transferred to employer through contract)
      • can also be transferred to other companies
    • licenses need to be handed out if not used

  • acts of infringement

Scope of IP right

  • exclusive rights
    • negative right to defense → I don’t want my book to be translated
  • license agreements
    • exclusive licenses → right of free use, not right of ownership
    • non-exclusive licenses → rights granted for special use cases

International IP law

  • Hierarchy of Norms
  • IP is territorial
    • Property Rights apply to each country individually
    • IP in USA is not valid in China
  • WIPO (Word Intellectual Property Organization)
  • WTO (World Trade Organization)
    • TRIPS (Trade-Related aspects of Intellectual Property Rights)
      • National Treatment → if rights granted to nationals, also to other members
      • (MFN) Most Favourable Nation treatment → best case for all members
    • gives minimum requirements, more may be added by member state
  • no International Trademark
    • “international trademark” is actually 126 individual trademarks
  • in EU there is union trademark
  • in EU there is NO union patent
  • Principle of First Sale
  • problems:
    • overprotection,
    • developing countries not having access to important patents

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