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LAW3202 Final Exam

QuestionAnswer
What are the Principle Defense in Copyright Law? 1. there was no violation of any economic or moral right 2. only took expression NOT idea 3. copied insubstantial amount 4. reasonable ignorance 5. express or implied license to use the work
What are the Statutory Defenses in Copyright Law? 1. Fair Dealing 2. Libraries and Archives 3. Educational Institutions 4. Persons with Disabilities 5. User Generated Content
What are the categories of Fair Dealing in Copyright Law? 1. for the purposes of research/private study 2. criticism or review 3. news reporting 4. purpose of education 5. parody or satire
What is considered when determining if a dealing is 'fair'? 1. purpose of dealing 2. character of the dealing 3. amount of dealing 4. nature of the work 5. available alternatives to the dealing 6. effect of the dealing on the original work (the deal must not be in direct competition)
What remedies are available for Copyright Infringement? 1. Injunction 2. Damages 3. account of profits
What criminal sanctions are available for Copyright Infringement? 1. Fines 2. Imprisonment
What are some examples of related rights for Copyright law? 1. Performers Rights 2. Broadcasting Rights 3. Producers Rights
What are collective societies in Copyright Law? Non-profit organizations which collect royalties on behalf of rights holders and redistribute them to their clients. e.g. SOCAN
What is a private copying regime in Copyright Law? Allows individuals to share copyrighted music. The person must copy the music onto a blank CD, themselves, and no sell the copy later.
What are the points of attachment for foreign works in Copyright Law? 1. Authored by a Canadian Citizen 2. Authored by a citizen of a TRIPS country 3. Have a first publication, author's residence, or headquarters in a TRIPS country
What does Industrial Design Law protect? Protects the features of shape, configuration, pattern, or ornamentation (or any combination) in a finished article, that appeals to, and are judged solely by, the eye. There can be NO overlap between appearance and function
In order for an Industrial Design to be protected, what requirements must it meet? 1. Must satisfy the definition of a design under s.30 in the Industrial Design Act 2. Must have visual appeal 3. Originality (be SUBSTANTIALLY DIFFERENT) 4. Must not be used or adopted by anyone prior to its first publication by the first proprietor
How long in an Industrial Design protected? 10 years - In 5 years 6 months renewal fees are required
What constitutes Industrial Design Infringement? 1. Making the design 2. Importing the design for trade or business sale
Defenses against Industrial Design Infringement? 1. Design was not properly registered 2. You had an express or implied license 3. Infringing Design was substantially different 4. Registration/maintenance fees were not paid 5. 3 years passed since the infringing action
What are the remedies for Industrial Design Infringement? 1. Injunction 2. Recovery of Damages/Profits 3. Punitive Damages 4. Disposal of Infringing Copies
What is an Industrial Design called in the USA Design Patent
How do you get Industrial Design Protection internationally? Separate Application in Each Jurisdiction
What is the current definition of a Trademark? a mark used by a person or business for distinguishing their wares from those sold or leased by others
What are the current types of Trademarks? 1. Use 2. Certification 3. Distinguishing Guise 4. Proposed Use
What is the new definition of a Trademark? a sign or combination of signs that is used or proposed to be used by a person for the purpose of distinguishing their goods and services from those of another
What is the definition of a sign in the new Trademarks act? includes a word , personal name, design, a letter or numeral, colour, figurative element, 3D shape, hologram, moving image, mode of packaging goods, a sound, sent, taste, texture or positioning of a sign
What is a trade name? The name under which the business functions. It may overlap with the businesses trademark but it doesn't have to be the case.
What are the benefits of registering a Trademark? 1. Enjoy a wider scope of protection 2. Protects a wider geographic area 3. the burden of proof is on the person claiming infringement
What is a characteristic of an unregistered trademark? an unregistered trademark is limited to the general region in which the business is known
Describe a famous mark: Famous marks protect well known trademarks with an established reputation in Canada. Aims to protect consumers who associate with certain companies from being confused if another company uses them deceptively
What is needed for something to be considered a famous mark in Canada? 1. Made known in Canada 2. Used in association with a member state of the Paris Convention 3. Must be distributed and advertised in Canada 4. Needs to be well-known in Canada
What is an official mark? A mark used by official entities to protect individuals from people pretending to be public authorities and protect the public authorities' reputation
What do official marks require? 1. Adoption (notice of adoption) 2. Use 3. Public Authority ( a group who's activities are supervised by a government department for the public's benefit)
What are some examples of things that cannot be protected as Trademarks? 1. full name or last name (living or deceased 30 years) 2. descriptive or deceptively mis-descriptive 3. the name of a good in any other language 4. likelihood of confusion 5. adoption of a sign/mark prohibited by s.9 or s.10
What is the test for confusion in Trademark Law? "Ordinary Hurried Consumer" 1. inherent distinctiveness and extent to which they are made known 2. length of time used 3. nature of wares 4. nature of trade 5. degree of resemblance, appearance, sounds and ideas
What do sections 9 and 10 of the Trademarks Act prohibit? s. 9: official marks (flags and crests), obscene or immoral images s 10: regular usage of term has made the good so common it loses distinctiveness
What does a geographic indicator in Trademarks Act mean? You cannot put the trademark on wine and spirits that say its from an area where it isn't from
What is distinctiveness in Trademarks Act? Distinctiveness correlates with the ability of a mark to distinguish between companies: 1. good must be associated with mark (linkage) 2. mark is used to sell the goods 3. usage and association enable the consumer to distinguish between goods
What is the registration procedure for Trademark Protection? 1. Registration 2. Entitlement 3. Reasons for Refusal 4. Published in Trademarks Journal 5. Opposition 6. Certification
Is the use of a trademark by a licensee considered use for the purpose of the Trademarks Act? Yes
What must the owner of a trademark do when they license it? Maintain direct or indirect control
What is the term of protection for trademark law? 15 years, it can be perpetually renewed upon the payment of a fee
When can a trademark be expunged? If a trademark hasn't been used in 3 years (invalidated by virtue of s.18 abandonment)
What constitutes trademark infringement? 1. use of a registered mark without permission 2. depreciation of good will
What is depreciation of good will in Trademark law? You cannot use someone else's mark to make their product look bad. You cannot do something to the mark that would harm the reputation built by the company
What is the Tort of Passing off in Trademark law? Directing the attention of the public in order to get more money (trying to fool customers) 1. was their an act against good will 2. misrepresentation leading to deception and confusion 3. actual or potential damage
What some of the principle defenses of Trademarks law? 1. you are allowed to use your own name 2. geographic place names in the location of the business 3. accurate description of the goods and services 4. freedom of expression
What are some remedies available under copyright law? 1. injunction 2. damages
What is bargain theory in patent law? Temporary monopoly is granted in exchange for full disclosure
What are the two requirements of a patent application? 1. Disclosure: disclose everything done in order to create the invention, so that anyone skilled in the field could obtain the same result 2. Claims: anything not claimed in the section it is not covered by patent protection
What are the requirements need for patent protection? 1. Patentable subject matter 2. Novelty 3. Utility 4. Non-obviousness
What is NOT patentable subject matter? 1. calculative computer programming 2. medical treatments 3. higher life forms 4. business systems, methods, and professional skills 5. artistic, literary, and intellectual works (copyright) 6. human conduct 7. architectural plans
What is part of Novelty? 1. Patent Act says you have one year's grace period from your announcement of the invention in order to get protection 2. If someone who did not receive info from you (develop independently) than grace period does not apply
What is utility? Does your invention do what you say it will 1. Utility by demo: the inclusion of clinical data that proves your invention does what you are claiming it will do 2. Sound Prediction: Factual basis for prediction, sound line of reasoning, proper disclosure
What makes non-obviousness? 1. Identify a person skilled in the art 2. what step in the invention is non-obvious (inventive concept in question) 3. difference between invention and what is known 4. bearing in mind what we know, was it obvious they did that
What is the term of protection for patents? 20 years
What information is confidential? The extent to which... 1. info is known outside the business 2. it is known by employees in the business 3. measures are taken to guard the secrecy 4. the info has value to the competitors 5. $ is invested to developing the info 6. the info could be properly aquires
How long is the information confidential? As long as it is secret
What qualifies as infringement? 1. Breach of Contract 2. General Breach of Confidence 3. Breach of Fiduciary Duty
What does Breach of Contract include? NDA (non-disclosure agreement) usually in an employment agreement. Litigation usually occur when you leave a company and use what you learn to start a new business
What does a General Breach of Confidence include? 1. info must have contained an element of confidence 2. info must be imparted in circumstances importing the obligation of confidence 3. there must have been an unauthorized use of the info to the detriment of the party who communicated it
What does Fiduciary Duty include? 1. the fiduciary has the scope for the exercise of power or discretion 2. the power can be used to affect the beneficiary's legal or practical interests 3. beneficiary is necessarily vulnerable to, or at the mercy of, the discretionary power
What is the springboard principle? you are not entitled to use the information you received before the info became public until another competitor can achieve the same result (without a head start)
What are some remedies for confidential information? 1. injunctions 2. damages 3. seizure 4. account of profits
What Act covers plant varieties? Plant Breeders Act
What is the definition of a plant variety? A plant variety is "any cultivar, clone, breeding line, or hybrid of a prescribed category of a plant that can be cultivated." Rewards the development of new plant species. Plant varieties do not receive patent protection.
What are the requirements for plant varieties? 1. New (no plant like it) 2. Different (distinct from all other varieties) 3. Uniform (all plants are the same) 4. Stable (all generations are the same)
What are the terms of protection for plant varieties? 18 years
What are the exceptions for plant varieties? Farmers protection Research
What is an integrated circuit topography? Protects the layout of the functional pieces of the circuit. Only protects the layout and not the function. They layout must be original. Must not be the mere reproduction of a circuit. Must be the result of intellectual effort
What are the stages of international intellectual property? 1. Territorial Stage 2. International Stage 3. TRIPS Stage 4. TRIPS plus Stage
Key Principles of international intellectual property law? 1. Minimum Standard of Protection 2. Automatic Protection 3. National Treatment Principle 4. Most Favoured National Principle
What is the National Treatment Principle? you cannot favour your authors over another counties authors
What is the Most Favoured Nation Principle? all nations benefit from an increase in IP protection because the same terms must apply to everyone (non-description principle)
Why does it matter in Canada? 1. Canada has to comply with ratified treaties 2. Canadian courts consider international IP when considering Canadian IP law 3. Can be a useful model to help build national law
What is the Access to Knowledge Moment? Intellectual Property Rights have developed to protect authors and creators at the expense of the public. Start of the intellectual enclosure movement.
Why do people argue that there is an intellectual enclosure movement? 1. always protecting new subject matter 2. increasing the terms of protection 3. increasing the scope of protection
Developing countries argue IP laws (like TRIPS) aren't fair because they don't take into account the fact they can't afford to pay as much as developed countries for knowledge. What are arguments against this? 1. They receive foreign aid 2. Conventions contain exceptions and limitations (fair dealing) 3. Wording of the agreement contains ambiguity and built in flexibility
What happens if one work qualifies for more than one type of IP protection The courts look at the underlying purposes of the acts in question. The courts refuse to grant multiple types of protection if the key features of one infringe on the key features of another.
What is an example of something that can be protected by more than one type of IP? Fictional Characters
What does the copyright act explicitly protect (to the exclusion of other types of IP regimes)? 1. computer programs - excluded from patent protection 2. topographies - included in integrated circuit topographies
Why can't you register a distinguishing guise that has utilitarian function? You can't register a trademark if the distinguishing guise interferes with utilitarian functions, avoids overlaps with patents
When can industrial design and copyright intersect? You can get a copyright on the image of an industrial design as long as the industrial design produces less than 50 copies. If the image includes a trademark/logo the copyright can be maintained if you make more than 50 copies
What are the requirements for misappropriation of personality? 1. must be done for commercial purposes 2. the identity of the individual must be primarily and obviously visible and recognisable
Created by: alentini