Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
BUSINESS LAW
FINAL PROJECT
SECTION(B)
BUSINESS LAW
SUBMITTED TO
Ms. H. AMINA SADIA
PROFESSOR LAW DEPARTMENT
MANAGEMENT DEPARTMENT
UNIVERSITY OF CENTRAL PUNJAB LAHORE
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GROUP
MEMBERS
NAMES
ID NUMBERS
FAISAL RASHEED
L1S11BBAM2093
SADIQUE HAKIM
L1S11BBAM2054
L1S11BBAM2025
MUHAMMAD AMDAN
L1S11BBAM0143
ACKNOWLEDGEMENT
In the name of Almighty Allah, the most beneficent and merciful to the mankind.
This project would not be possible without the encouragement and guidance of number
of people. We feel highly obliged and want to express our deepest gratitude to our
respected teacher PROFF. H.AMINA SADIA for her advice, help and guidance throughout
this semester. We would like to express our deepest gratitude to our parents and friends
for their inspirations, love and constant support.
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TABLE OF CONTENTS
INTELLECTUAL PROPERTY RIGHTS
What Is Intellectual Property
Kinds of Intellectual Property Rights
1. Industrial Property Rights
o Patent
o Trademark
o Industrial Design
2. Copyright And Related Rights
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INTRODUCTION
INTELLECTUAL PROPERTY RIGHTS
Intellectual property, very broadly, means the legal rights which result from
intellectual activity in the industrial, scientific, literary and artistic fields. Countries
have laws to protect intellectual property for two main reasons. One is to give
statutory expression to the moral and economic rights of creators in their
creations and the rights of the public in access to those creations. The second is
to promote, as a deliberate act of Government policy, creativity and the
dissemination and application of its results and to encourage fair trading which
would contribute to economic and social development.
Intellectual property (IP) is original creative work, such as a piece of music, an
invention, a piece of software or a brand, that has been developed to such a
stage, and captured in some permanent way, for example, on paper, that it
can be owned in the same way as physical property. The owner of IP has
control over it and would expect to be rewarded for its development and use.
Anyone who has a new creative or innovative idea then has the right to benefit
from it. That right can be bought, sold, hired or licensed like any other property.
It is important to be aware of what these IP rights are, how they can be
protected and, in due course, how to benefit from them.
Generally speaking, intellectual property law aims at safeguarding creators and
other producers of intellectual goods and services by granting them certain
time-limited rights to control the use made of those productions. Those rights do
not apply to the physical object in which the creation may be embodied but
instead to the intellectual creation as such. Intellectual property is traditionally
divided into two branches, industrial property and copyright.
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INTRODUCTION
INTELLECTUAL PROPERTY
Patents, trade-marks, copyright, industrial designs and similar rights are referred
to as "intellectual property". These rights are "property" in the sense that they are
based on the legal right to exclude others from using the property and in that
ownership of the rights can be transferred. The rights are "intellectual" in the
sense that they protect intangible subjects, usually arising out of some form of
human creativity.
Patents protect inventions, such as machines, devices, methods and
compositions of matter. Trade-mark rights protect words, designs, numbers, twodimensional or three-dimensional forms, sounds or colors (or a combination of
two or more of these elements) used to distinguish the products or services of
one trader from those of others in the marketplace. Copyright protects literary
(including computer programs), artistic, musical and dramatic works. Related
rights include trade secrets, industrial designs, integrated circuit topographies,
plant breeders' rights, and personality rights such as the right to the image.
Each of these rights is quite different from the others. For example, the inventor
of a new interlocking paving stone may be able to obtain a patent on the
method of making the stone and the aspects of the structure of the stone which
permit it to interlock. An industrial design registration may also be obtained
covering decorative features in the shape of the stone. The name under which
the stone is sold may be protected by a trade-mark registration. Finally,
information which may be presented in booklets or videos describing how to
install the stones may be protected by copyright.
Websites are another example of how different intellectual property rights might
exist and cross each other. Starting with the domain name registration for the
website, one or many trade-marks may be used (words, designs, slogans) in
association with wares or services which themselves might be covered by
copyright, patent or industrial design protection. There may also be copyright
protection in the text, database or artistic work appearing on the website or
even in a song or music played while consulting the website. Each of these
forms of intellectual property gives a right to different but possibly related
protection.
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Technology Creation
Technology Transfer
Creativity Promotion
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IMPORTANCE
INTELLECTUAL PROPERTY RIGHTS IN MODEREN SOCIETY
In modern society, the concept of personal property is of more importance and
known in the economic market. To take you more deep into it, in the common
law systems personal property may also be called chattels. It is distinguished
from real property, or real estate. In the civil law systems personal property is
often called movable property. Personal property may be classified in a variety
of ways, such as money, negotiable instruments, securities, goods, and
intangible assets including chose in action. The distinction between these types
of property is significant for a variety of reasons. Usually ones rights on movables
are more attenuated than ones rights on immovable (or real property). Real
property rights are usually enforceable for a much longer period of time and in
most jurisdictions real estate and immovable- are registered in governmentsanctioned land registers. In some jurisdictions, rights (such as a lien or other
security interest) can be registered against personal or movable property.
In the common law it is possible to place a mortgage upon real property. Such
mortgage requires payment or the owner of the mortgage can seek
foreclosure. Personal property can often be secured with similar kind of device,
variously called a chattel mortgage, trust receipt, or security interest. In the
United States, Article 9 of the Uniform Commercial Code governs the creation
and enforcement of security interests in most (but not all) types of personal
property. There is no similar institution to the mortgage in the civil law; however a
hypothec is a device to secure real rights against property. These real rights
follow the property along with the ownership. In the common law a lien also
remains on the property and it is not extinguished by alienation of the property;
liens may be real or equitable.
Many jurisdictions levy a personal property tax, an annual tax on the privilege of
owning or possessing personal property within the boundaries of the jurisdiction.
Automobile and boat registration fees are a subset of this tax. Most household
goods are exempt as long as they are kept or used within the household; the tax
usually becomes a problem when the taxing authority discovers that expensive
personal property like art is being regularly stored outside of the household .
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Notified under F. No. 2(1)/2000-Pub.- in the Gazette of Pakistan, Extraordinary, published from
Islamabad on 2 December 2000.
2
Notified under F. No. 2(1)/2002-Pub.- in the Gazette of Pakistan, Extraordinary, published from
Islamabad on 26 October 2002.
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example of the aggressive, open-minded and state of the art approach of the
higher judiciary in Pakistan. In this case of Patent infringement decided nearly a
decade ago, the High Court of Sind laid down the so-called principle of 'reversal
of burden of proof', at a time when such a principle was still being debated and
deliberated upon in many jurisdictions of the world.
In the High Court of Sind at Karachi:
SmithKline and French Laboratories Limited and another versus Ferozsons
Laboratories Limited and another, 1992 MLD 2226
In this case of patent infringement, the High Court of Sindh had laid down the
principal of reversal of proof (in the year 1991) in the manner that in case of
infringement of a process patent, the onus is upon the Defendant to prove that
it has produced the infringing product through a process different from the one
covered by the patent. Relevant extract of the judgment on the issue of reversal
of proof says:
"That may be so but the defendants have not produced any evidence to
indicate that their drug has been produced by a process other than the process
for which the plaintiffs hold the patent. I would, in the circumstances, hold that
the plaintiffs have established, prima facie, that the drug being sold by the
defendants contains Cimetidine A and has been manufactured by using the
process for which the plaintiffs hold the patent."
In the above manner, it is clear that the Pakistani courts even independent of
TRIPs and other related international treaties had laid down the principal of
'reversal of proof', which is a clear proof of the fact that the Pakistani Courts
extend maximum protection to the Intellectual Property Rights.
Conclusion and analysis
IP rights are private rights... unless the right holders agitate the right forum; his
rights will not be protected. Whenever the IP owners have asserted their rights by
flexing their muscles and bringing out well planned, prepared, prosecuted and
pursued judicial proceedings (4P rule) their rights have been upheld and
adequately enforced by the authorities.
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TRADEMARKS
A trademark is a distinctive sign that identifies certain goods or services
produced or provided by an individual or a company. Its origin dates back to
ancient times when craftsmen reproduced their signatures, or marks, on their
artistic works or products of a functional or practical nature. Over the years,
these marks have evolved into todays system of trademark registration and
protection. The system helps consumers to identify and purchase a product or
service based on whether its specific characteristics and quality as indicated
by its unique trademark meet their needs.
What do trademarks do?
Trademark protection ensures that the owners of marks have the exclusive right
to use them to identify goods or services, or to authorize others to use them in
return for payment. The period of protection varies, but a trademark can be
renewed indefinitely upon payment of the corresponding fees. Trademark
protection is legally enforced by courts that, in most systems, have the authority
to stop trademark infringement. In a larger sense, trademarks promote initiative
and enterprise worldwide by rewarding their owners with recognition and
financial profit. Trademark protection also hinders the efforts of unfair
competitors, such as counterfeiters, to use similar distinctive signs to market
inferior or different products or services.
What kinds of trademarks?
Trademarks may be one or a combination of words, letters and numerals. They
may consist of drawings, symbols or three dimensional signs, such as the shape
and packaging of goods. In addition to identifying the commercial source of
goods or services, several other trademark categories also exist. Collective
marks are owned by an association whose members use them to indicate
products with a certain level of quality and who agree to adhere to specific
requirements set by the association. Such associations might represent, for
example, accountants, engineers or architects. Certification marks are given for
compliance with defined standards but are not confined to any membership.
They may be granted to anyone who can certify that their products meet
certain established standards. Some examples of recognized certification are
the internationally accepted ISO 9000 quality Standards of products with
reduced environmental impact.
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3-dimentional features.
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Explanation and Judgment of the case: Co. Coca-Cola v. Koke Co. of America
A picture of coca leaves and cola nut on the labels, and containing certain
harmless extractives from coca leave and cola nut, claimed to add flavor, with
some caffeine from the nuts and more superadded, originally contained also
some cocaine derived from the coca leave, and was once advertised as an
"ideal nerve tonic and stimulant," but, long before this suit began, cocaine was
eliminated, the article was advertised and sold as a beverage only, free from
cocaine, and, for the public generally, the name came to signify the beverage
itself, the plaintiff's product, rather than its ingredients. Held, that the continued
use of the name with the picture was not a fraud depriving the plaintiff of the
right to enjoin infringement and unfair competition in selling a like preparation
under the name of "Koke," but that the injunction should not restrain use of the
name "Dope," a featureless word not specifically suggestive of "Coca Cola" by
similarity or in use, nor forbid manufacture and sale of the product, including the
coloring matter. P. 254 U. S. 145
The decree of the District Court restrains the defendant from using the word
'Dope.' The plaintiff illustrated in a very striking way the fact that the word is one
of the most featureless known even to the language of those who are
incapable of discriminating speech. In some places it would be used to call for
Coca-Cola. It equally would have been used to call for anything else having
about it a faint aureole of poison. It does not suggest Coca-Cola by similarity
and whatever objections there may be to its use, objections which the plaintiff
equally makes to its application to Coca-Cola, we see no ground on which the
plaintiff can claim a personal right to exclude the defendant from using it.
The product including the coloring matter is free to all who can make it if no
extrinsic deceiving element is present. The injunction should be modified also in
this respect.
Decree reversed.
Decree of District Court modified and affirmed.
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Seven-Up Company
Vs
Kohinoor Thread Ball Factory and 3 others
(PLD 1990 SC 313)
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In PLD 1979 Karachi 83 at page 87, Mr. Justice I. Mahmud stated that:
With the revival of International Trade and international publicity, the rights of owners
of foreign Trademarks ought to receive some safeguard unless it is clear from the
evidence that the foreign owners have abandoned their intention of marketing their
products under the mark in this country.
In PLD 1990 SC 1074, the Supreme Court approved the following observation of
the High Court:
With the proliferation of means of communication media the names and products of
word renowned big companies are catching the eyes and ears of the public at large in
all civilized countries of the world and Pakistan is no exception. Extensive traveling
abroad in the recent past has made it possible for the people of Pakistan to have
knowledge of the internationally renowned companies and their products. Respondent
2 is no doubt a company of world renown and its products are marketed in Pakistan as
also in other countries.
INDUSTRIAL DESIGN
An industrial design refers to the ornamental or aesthetic aspects of an article. A
design may consist of three-dimensional features, such as the shape or surface
of an article, or two-dimensional features, such as patterns, lines or color.
Industrial designs are applied to a wide variety of industrial products and
handicrafts: from technical and medical instruments to watches, jewelry and
other luxury items; from house wares and electrical appliances to vehicles and
architectural structures; from textile designs to leisure goods. To be protected
under most national laws, an industrial design must be new or original and
nonfunctional. This means that an industrial design is primarily of an aesthetic
nature, and any technical features of the article to which it is applied are not
protected by the design registration. However, those features could be
protected by a patent.
Advantages of Registered Designs
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The design was held invalid on ownership grounds, but there would otherwise
have been infringement in some instances. The UK unregistered design was
infringed.
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On appeal three Federal court Judges, Justice Jessup, Justice Besanko and
Justice Emmett dismissed the appeal by Elecspess, Ren, Olsen and Advance
Automotive appeal from Justice Gordons ruling that it had infringed LED
Technologies registered design. This is the first substantive decision by a Full Court
on the new Designs Act introduced in 2003 and provides a guideline and
reference for any future design infringement cases. Owner of LED Technologies
Tony Ottobres comments were, this is a fantastic result for all designers of
original products who can now use this case as precedence and a blow for
product copiers.
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COPY RIGHTS
Copyright is a set of exclusive rights granted to the owner for a limited time to
protect the particular form, way or manner in which an idea or information is
expressed. Copyright laws grant authors, artists and other creators protection
for their literary and artistic creations, music, films, paintings, sculptures,
computer programs and data base etc, generally referred to as works. A
closely associated field is related rights or rights related to copyright that
encompass rights similar or identical to those of copyright, although sometimes
more limited and of shorter duration. The beneficiaries of related rights are:
o performers (such as actors and musicians) in their performances;
o producers of phonograms (for example, compact discs) in their sound
recordings; and
o Broadcasting organizations in their radio and television programs.
Works covered by copyright include, but are not limited to: novels, poems plays,
reference works, newspapers, advertisements, computer programs, databases,
films, musical compositions, choreography, paintings, drawings, photographs,
sculpture, architecture, maps and technical drawings.
Copyright is Moral and economic rights of authors/ writers, publishers, performers
and producers of sound recordings (phonograms). Duration of Copyright
protection is life time of the author plus 50 years thereafter
Copyright work or Copyright registration can categorize by following
Parts:
1. Literary works, for example: Books, Magazines, Journals, Lectures, Sermons,
Dramas, Novels, and also including Computer Programs and
Compilation of Data.
2. Artistic works, for example: Paintings, Photographs, Maps, Charts,
Calligraphies, Sculptures, Architectural Works, Drawings, Label Designs,
Logos, monograms etc).
3. Cinematographic works (Motion Pictures, Video Cassettes, VCDs, DVDs
etc.).Records Works (Audio Cassettes and CDs).
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Filing of application
Examination
Publication in newspaper (Artistic Work only)
Opposition, if any
Issuance of Certificate by Registrar (Registration)
its reproduction in all forms, including print form and sound recording;
its public performance and communication to the public;
its broadcasting;
its translation into other languages; and
Its adaptation, such as from a novel to a screenplay for a film.
Similar rights of, among others, fixation (recording) and reproduction are
granted under related rights. Many types of works protected under the laws of
copyright and related rights require mass distribution, communication and
financial investment for their successful dissemination (for example, publications,
sound recordings and films). Hence, creators often transfer these rights to
companies better able to develop and market the works, in return for
compensation in the form of payments and/or royalties (compensation based
on a percentage of revenues generated by the work). The economic rights
relating to copyright are of limited duration as provided for in the relevant
WIPO treaties beginning with the creation and fixation of the work, and lasting
for not less than 50 years after the creators death.
Copyright and the protection of performers also include moral rights, meaning
the right to claim authorship of a work, and the right to oppose changes to the
work that could harm the creators reputation. Rights provided for under
copyright and related rights laws can be enforced by right holders through a
variety of methods and for a, including civil action suits, administrative remedies
and criminal prosecution. Injunctions, orders requiring destruction of infringing
items, inspection orders, among others, are used to enforce these rights.
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Salient features
o Period of copyright is the life of the author and 50 years after his death
o Registration of copyright is not mandatory but recommended
o Allows reproduction for Fair Use in research, teaching, private study,
criticism, review, news reporting, and judicial proceeding
o Provides 3 types of remedies against infringement:
o Civil
o Criminal
o Administrative
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Metricon Homes Pty Ltd v Vista Design Architects Pty Limited & Ors
[2011] FMCA 788
(22 September 2011)
Copyright application for transfer of proceeding to Sydney
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Mission Statement
The Mission Statement of IPO-Pakistan is as follows
Integrating and upgrading IP infrastructure for improved service delivery;
increased public awareness and enhanced enforcement coordination for
achieving the goal of being an IP based nation.
Public Awareness
IP awareness in Pakistan is very low. In order to improve public awareness, IPO
has launched a Public Outreach Program for link aging and leveraging internal
and external constituencies i.e. Chambers of Commerce and Industry, business
enterprises, R&D institutions, universities, academia and general public. World
Trade Review, a fortnightly newspaper focused on WTO news is also regularly
publishing IP news. Both Electronic Media and Print Media are being increasingly
used for enhancing general public awareness in IP.
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IN THE WORLD
How do I protect my Intellectual Property Overseas?
Many small companies experience difficulty protecting their IPR abroad,
including in China, as they are not aware of how to obtain and enforce rights in
foreign markets. Some basic, often low-cost, steps small companies should
consider include:
o Working with legal counsel to develop an overall IPR protection strategy;
o Developing detailed IPR language for licensing and subcontracting
contracts;
o Conducting due diligence of potential foreign partners (The U.S.
Commercial Service can help, see Export.gov);
o Recording their U.S.-registered trademarks and copyrights with Customs
and Border Protection; and
o Securing and registering patents, trademarks, and copyrights in key
foreign markets, including defensively in countries where IPR violations are
common.
Combining Registered and Unregistered Rights
You can combine registered and unregistered rights to optimize IP protection for
your
business.
These
may
involve
using trade
secrets
and
confidentiality agreements
together
with
registered
rights,
such
astride and designs.
Not every piece of IP you own will warrant the cost and time required to formally
register it. You may determine it is better to get your product into the market as
soon as possible instead of waiting for full protection from a patent, for example.
However, other IP you own might be critical to your business success and require
the benefits provided by registered rights.
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RECOMMENDATIONS
The Patent System added the fuel of interest to the fire of genius.
[Abraham Lincoln].
It is obvious that currently the emphasis in not on passage of international and
national legislative bills on IP; rather it is the protection of the intellectual
property rights through effective law enforcement, efficient administrative
machinery and receptive judiciary
Federal Shariat Court acknowledged a very broad definition of IP under the
Islamic law. It was observed that all intellectual properties are intangible
properties and conform to the word MAAL (property) anything having
monetary value. [PLD 1983-FSC 125]
Losses in terms of the inability to attract fresh investment, costs & damage to
consumers, and loss of international reputation due to infringement of
Intellectual Property Rights are incalculable
Like most other developing countries, piracy of nearly all major and famous
brands and products is uncontrolled in Pakistan. A few estimates regarding the
losses faced by the stakeholders as a result of rampant IPR violations are as
follows:
o Oil & Lubricants Industry: Annual Revenue Loss to Government Rs.1600
million.
o Books & Publishing: Revenue Loss to Government Rs.40 million.
o IT Industry: Job Losses, 31000 approx.
The message is clear for the nations racing for returns and desirous of
maintaining their competitive edge.
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CONCLUSION
Every man has a property of his own person, the labor of his
body and the works of his hands are properly his"
[John Locke]
We are living in a century of scientific knowledge and innovation. The worlds
leading nations in these times are those who create, innovate and exploit
knowledge. Today the standing of a country in the comity of nations depends
on its ability to transform knowledge into opportunity, wealth and social welfare
through creativity and innovation. Trade and industry are becoming more
knowledge driven than ever. Trade in raw and natural substances has given
way to trade in high technology goods and services. Creative thinking and the
ensuing sea of knowledge and innovation has brought about a complete
transformation in the world we inhabit today.
Pakistani Courts had long realized the importance of protecting the rights of
owners of the Intellectual Property Rights. Their approach, when dealing with
issues relating to Intellectual Property Rights, has always been forward looking
and futuristic. The Courts of Pakistan were recognizing globalization and
international trade, and enforcing rights based on such principles, at times when
even some of the developed nations were only beginning to discuss these issues
Hence in a nutshell, while intellectual property laws demand international
harmonization the fact is that these laws are impossible to enforce. The on the
ground reality therefore is not a single global order, but rather a mix of different
zones both within and between countries where intellectual property laws are
enforced to varying degrees. It is the heterogeneity of these zones each of
which operates with a fair degree of autonomy that allows global piracy to
thrive
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