LPC Law Notes International Intellectual Property Notes
A collection of the best International Intellectual Property notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of International Intellectual Property notes available in the UK this year. This...
The following is a more accessible plain text extract of the PDF sample above, taken from our International Intellectual Property Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Unit 2 – Consolidation IP
C = claimant
D = Defendant
What is protected? | Goodwill, e.g. logo or name, ‘get up’ |
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What benefit does protection provide? | Protects against unfair use of, or damage to, business reputation |
How is it obtained? | Arises automatically (no registration) |
How long does it last? | Indefinitely |
What is passing off? |
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OUTCOME 1 – identify situations in which the following can be used to protect goodwill:
OUTCOME 3 – Advise on the similarities between rights
Passing off in the UK and other commonwealth jurisdictions
UK | Canada |
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Goodwill is the “attractive force which brings in custom” Automatically able to bring a passing off action once goodwill built up and protection is indefinite Reckin & Coleman v Borden – Jiff plastic lemon bottle (3 stage test)
If the misrep does lead to confusion then a presumption of damage (more misleading = more damaging) | Ciba-Geigy Canada Ltd. v. Apotex Inc
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The USA:
The Lanham Act |
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s.43(a) “Palming off”
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Europe
Unfair commercial practices directive |
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OUTCOME 2 – Advise on conditions that must exist for the rights to apply:
Elements to be established by C Consorzio del Prosciutto di Parma v Marks and Spencer plc/Reckitt & Coleman v Borden:
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1. Goodwill | Lord Macnaghten IRC v Muller & Co’s Magazine 1901 - “Very easy to describe but difficult to define. It is the benefit of the good name, rep and connection of a business. It is the attractive force which brings custom” Goodwill means business rep: - Must be among customers or prospective customers - Must be in relation to some distinguishing feature - C must show the customers associate the goods/services with C and also that the customers understand the distinguishing feature as an indication or sign that the goods/services come from C Proving goodwill: - health accounts - number/diversity of customers - length of trading history - geographical spread of goodwill Sources used to prove goodwill: - sales figures - expenditure on advertising (using distinguishing feature in question) - witness evidence - survey evidence - focus groups (which product would you prefer?) Types of distinguishing feature: - logo, shape, colour or style of packing, get up, - a name (e.g. Neutrogena Corp v Golden ltd: Neutralia sufficiently similar to Neutrogena to constitute passing off) The category of things in which C can have reputation is not closed and cannot be conclusively defined or limited The limits of the tort are very wide (because passing off is a common law tort) |
2. Misrep leading to confusion | There must be a misrep made by D in the course of trade (i.e. a false rep which deceives/confuses C’s customers) - Usually deliberate, e.g. the Penguin and Puffin case – United Biscuits v Asda1997 - Could be innocent but still actionable
Must lead to confusion of customers/ potential customers and generally it must be confusion as to trade source - Customers must be fooled into thinking that D’s products come from or are associated with C 1. Confusion must be at point of sale, or before it (in contract to other jurisdiction which recognise post-sale confusion)
2. Confusion between C and D’s products is not enough – customers must believe that D’s products are associated with C
3. Needs to be an overlap between alleged infringer and proprietor in that there is a common field of activity in the following respects: a) Type of good/services – business in different fields/trades is less likely to cause confusion – e.g. bicycle maker v law firm b) Geographical area – businesses in different areas less likely to cause confusion c) Time – the overlap must be more or less contemporaneous - Unless there is a common field of activity it will be difficult but not impossible to show confusion and damage to goodwill Evidence of confusion
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Buy the full version of these notes or essay plans and more in our International Intellectual Property Notes.
A collection of the best International Intellectual Property notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of International Intellectual Property notes available in the UK this year. This...
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