Types of Intellectual Property - Literature review Example

CONTENTS Introduction Types of Intellectual Property 1 Significance of the Protection of Intellectual Property 2 The Challengers of Intellectual Property Protection 3 Introduction of Louis Vuitton 4 Louis vs. Google—Counterfeit Case 5 Conclusion 8 References INTELLECTUAL PROPERTY INTRODUCTION The concept intellectual property simply means such kind of possessions and assets that are the outcome of an individual’s intellect or ideas, and these can be either tangible or intangible. In other words, intellectual property is the production of man’s imagination and thoughtfulness that may be the result of his deep concentration, hard work or individual as well as collective mental effort. The World Intellectual Property Organization defines intellectual property in these words: “Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.” Almost all the organizations whether large of small, national or multinational, and industrial or artistic develop logos, draw designs and introduce some brands that serve as the identity mark of the company. Intellectual property is the identity mark of an individual, a company, an organization or an industry, over which the creator contains complete and unconditional rights. The statute of law provides protection to such property in favour of the originator, and claim over this type of property without referencing to the devisor is against the statute of law and liable to be punishment. Copyright Act, Trademark Ordinance and Patents Ordinance provide protection to intellectual property rights. Types of Intellectual Property There are two main types of intellectual property i.e. i) Copyright and ii) Industrial property. Copyright consists of sections of art and literature including prose work, poems, lyrics, drama, novel, narrative, thesis, presentation, articles, essays, broachers, film, paintings, sculptures, drawings, photographs, musical tones and songs, printing material, publications, architectural and audio-visual works. “Copyright is given”, Rafique states, “to the first producer of a book irrespective of the fact whether that book is wise or foolish, accurate or inaccurate, or of literary merits or no merit whatever”. (Copyrights Ordinance 1962, 2005: p 4). Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs. In the same way, Industrial and manufacturing intellectual property consists of logo, slogan, trademark, patents, brand name, company design, software, chemical formula, machine, apparatus and inventions. It is fact beyond doubt that the person who makes efforts in respect of creating an innovative idea or making invention deserves reward and admiration. “Trademark means”, Sattar writes, “any mark capable of being represented graphically which, is capable of distinguishing goods or services of one undertaking from those of other undertakings.” (Trademark Ordinance 2001, p 17). Trademark is not only the sign of identity as well as distinction of a company, but also it provides surety of quality of the product launched in the market. Trademark registry gives birth to trademark rights to the devisor and no other company or individual is permitted to use the same trademark that has already been registered in favour of inventor. Patent Ordinance 2000 defines the term Patent in these words: “Patent is a grant made by the government that confers upon the creator the sole right to make, use and sell that invention for a specified period of time.” (Patent Ordinance, 2000, p. 10). Though, the Trademark Ordinance gives no proper definition of the term Design, yet design refers to the pattern or logo conceived in mind as an identity mark of an organization. Significance of the Protection of Intellectual Property A creator utilises his energies and exercises his abilities for the benefit of other individuals; he invests time and money to conceive new ideas and presents it before the world. It is therefore his services must be acknowledged and appreciated. The protection and preservation of the rights of the innovator is one of the most significant modes of encouraging his efforts. Thus, the protection of such property is the basic right of the producer, and no one is allowed to use such property in his name without the permission of the original devisor. Moreover, wrong use of a specific trademark containing low quality product launched in the market may jeopardise the good name and fame of an organization. Further, the misuse of trademark can prove dangerous and harmful for the people, especially in case of a medicine company. Fake medicines, with the trademark of a reputed industry not only take life of consumer, but also it can endanger the producer’s repute at stake. “The fake medicines, Kelly observes, “contain too much, too little or not active ingredients, the wrong ingredients or high levels of impurities, contaminants and even toxic substances”. (Kelly, 2004 p 4) The misuse of intellectual property has been of grave concern for the companies and individuals all over the world since long. The protection of the identity mark is the responsibility of the state on the same grounds as it provides protection of the rights of ownership of movable and immovable property. The Registration Act forbids not only the use of the same name, trademark, logo, sound and smell already existing and patent, but also it condemns the adaptation of similar name and logo, which may become hard to distinguish and may lead the consumers towards deception while making a choice during shopping. The Limitations of Intellectual Property Protection There exists a group who rejects the idea of the protection of intellectual property. It views it harmful and a threat to the way to progress as well as one of the main reasons for the production of substandard and fake manufacturing. “The dramatic expansion of intellectual property rights”, Perelman (Jan, 2003) views, “represents a new stage in commodification that threatens to make virtually everything bad about capitalism even worse. Stronger intellectual property rights will reinforce class differences, undermine science and technology, speed up the corporatization of the university, inundate society in legal disputes, and reduce personal freedoms”. Similarly, Jefferson (2003 pp. 1-5) also lays stress on the global biotechnology community to assume an open access genetics access instead applying strict intellectual property laws so that different strata can take benefit during their research. In his words: “Intellectual property is a legal regime that has become so stifling and restrictive that thousands of free-thinking programmers, scientists, designers, engineers, and scholars are desperate to find new ways to create.” (Quoted in the Wired Magazine, the 25th of November, 2003). Introduction of Louis Vuitton Company Louis Vuitton is one of the famous-most fashion brands of not only France, but also the world at large. Its most popular deluxe products made up of pure and refined leather include bags, hand bags, wallets, women accessories, clothes and shoes that maintain distinction from competitor and rival brands because of its high quality and sumptuous presentation. The brand serves as a status symbol especially among woman folk, and ladies from all corners of the globe consume the products of Louis Vuitton. The secret behind the company’s wonderful popularity is its superb quality and luxurious designs that fascinate the spectators and urge the consumers to buy the product. The company’s unique logo, which was introduced with the establishment of the company in 1854, is its identity mark that can easily be recognised by its consumers and customers everywhere. The distinguished blot i.e. beige-on-chestnut monogram of Louis Vuitton is the trade mark of the company. The logo was articulated and designed by the founders in 1854, at the time of its establishment in order to evade counterfeit in the future years to come. Louis vs. Google—Counterfeit Case It is the psyche of the low quality producers that they adopt unfair ways for the sale of their product. They know that the quality of their own commodities is unable to compete with the world class products. Thus, they either select the similar names or logos, or use the names of popular brands for their own creation. In both the ways, they violate the laws related to intellectual property. Many of the world class brands including Nike, Panasonic, Philips, Kiwi and others are facing the problem of counterfeit, which is an infamous blur on the very face of perfect competition. The same was the case with the so called competitors of Louis Vuitton manufacturers. It happened so that some low-profile companies advertised their goods that contained similar logos and names with the famous Louis Vuitton. They contracted with the Google, the out class search engine at the internet, regarding the sales campaign of their goods and Google supported them during their campaign. Such manufacturing companies had similar names, designs and trademarks. It badly damaged the repute of the Louis Vuitton and people started complaining about its quality. The consumers viewed that the industry was not maintaining its excellence, and the sale got a downward trend. The detection of counterfeiter is undoubtedly a hard nut to crack in the contemporary world. For example, there are millions of organizations and websites at work. If a poet publishes a poem at one website, it is very easy to steal it and send it to many other websites and journals without letting the genuine poet regarding the counterfeit of his work. Even then, Louis Vuitton very successfully prosecuted the offenders not only in France, but also in Asian countries and got triumph over the deceit. The company detected the counterfeiters and entered into legal pursuance in Asian and European courts to eradicate the violation of intellectual property rules against the offender companies. “Networks for the manufacture and distribution of counterfeit”, Marinovich argues, “Louis Vuitton products have been dismantled and counterfeit products have been seized in other Asian countries. Several plants have been shut down worldwide. In France, police operations led to the arrest of itinerant vendors of Louis Vuitton fakes. And in early 2005, 29 retailers from New York Citys Chinatown neighborhood—a hotbed for pirated items—were ordered to pay LVMH $564 million in damages.” (Marinovich: Brandchannel, November 13, 2006). All this was really a matter of grave concern for the market analysts, advertising department and the management of Louis Vuitton. The people’s unshakeable trust in the industry was its tower of strength that looked shivering after one and half century of its arrival in the market. “The luxury industry, the Louis Vuitton website states, “is particularly hard-hit by the counterfeiting of goods, which unlawfully takes advantage of the prestige of its brands and harms their tradition, identity and image.” (http://www.lvmh.com/fonctionalite/pg_faq_lutte.asp). The company decided to try the case in the court of law to combat the counterfeit nuisance with an iron hand. “Absurd claims to informational property rights, Simpson, (1995 p. 30) observes, “have been expanding by leaps and bounds. People have successfully convinced the Patent and Trademark Office to grant property rights for everything from colours to a specific number.” Thus, the company declared the act of counterfeit as one of the organized crimes against the copyright, trademark, design and patent rights.” Copyright, as the Act signifies, protects the first and genuine devisor from being copied his design and drawing material. The lawyer argued that as the Google search engine promoted the counterfeiters from its platform, by advertising their products that contain similarity with the original design of Louis Vuitton, it indirectly hit the reputation of the company. The French court of law, in its 29th June, 2006 judgment, announced a fine of 200,000 Euros along with damages as the penalty for being the part of counterfeit campaign. It also ordered the Google search engine not to advertise such counterfeited products from its platform. “LVMH says its 60-person anti-counterfeiting team”, Marinovish writes, “and the collaborating network of 250 agents, investigators, and lawyers conducted 6,000 raids worldwide in 2004, resulting in 1,000 arrests. As part of its proactive brand protection strategy, LVMH is also pursuing a policy to raise public awareness of the counterfeiting problem, while also developing relations with authorities in different countries and worldwide organizations.” The case serves as the precedent for the counterfeiters and their promoters all over the world. The citation of the French court can be given as an example to protect the rights of the intellectual property owners. Similarly, the Patent and Trademark Office even registered the “frowny” emoticon as a trademark of Despair.com. “Ralph Lauren won a victory in an appeals court in 2000, Shulman (2001) notes, “when his lawyers forced a magazine, begun in 1975 as the official publication of the U.S. Polo Association, to change its name because Lauren claimed the word “Polo” as intellectual property.” Conclusion To conclude, it is evident the need for the strict implication for the laws of intellectual property is necessary to safeguards the rights of the companies. In the same way, one who has invested his precious moments and resources in creating an idea deserves the reward. It is therefore the Copyright Act and trademark and Patents Ordinances came into being. However, since the world has become a global village in the contemporary era, and people are familiar with their favourite product, it is not easy to deceive anyone anymore. Thus, people are capable enough to distinguish between the genuine and counterfeit. Secondly, too much restrictions regarding the protection of intellectual property can cause the stagnancy in innovation and inventions. Moreover, the long term legal trials and procedures affect the overall productivity of the firms, companies and industries. The amicable settlement of disputes as well as lenient policies regarding intellectual property can boost the volume of trade, business and commercial activities. In the same way, the protection of the intellectual property is the basic and fundamental right of the devisor against which no compromise can be made, because it not only decreases the sale of the product, but also costs the manufacturer’s name, fame and reputation. REFERENCES Jefferson, Richard. 2003 Misuse of Intellectual property rights is crippling biotechnology. Quoted in The Wired Magazine, November 25, 2003. pp. 1-5. Kelly, Edward J. 2004. Harsh Medicine: Anti-Counterfeiting Strategies To Suppress Fake Or Unauthorized Parallel Drug Products In Thailand Tilleke & Gibbens International Limited. IP_Bulletin, June 2004 pp.1-4 Marinovich, Slaven. 2006 Louis Vuitton: Behind the Brand—Triumphs and Tragedies. Perelman, Michael. 2003. The Political Economy of Intellectual Property. Monthly Review, January Edition. Patents Ordinance 2000. Rafique, Ch. Mohammad. 2005. The Copyright Ordinance 1962 with Copyright Rules, 1967. Khyber Law Publishers, 10-Aibak Road, Anarkali, Lahore. P 4 Sattar, Abdul. 2001. Trademark Ordinance 2001. p 17. Nadeem Law Book House. 7-Turner Road, Lahore. Seth Shulman, “PB&J Patent Punch-Up,” Technology Review 104 (May 2001). Simson Garfinkel, “A Prime Legal Patent: Legal Rights to a Number Upset Programmers and Lawyers,” Scientific American 273 (July 1995): 30. World Intellectual Property Organization http://www.lvmh.com/fonctionalite/pg_faq_lutte.asp Read More