Oct 03, 2017 term paper 2

Commercial Law Infringement Of Intellectual Property Right

This paper concentrates on the primary theme of Commercial Law Infringement Of Intellectual Property Right in which you have to explain and evaluate its intricate aspects in detail. In addition to this, this paper has been reviewed and purchased by most of the students hence; it has been rated 4.8 points on the scale of 5 points. Besides, the price of this paper starts from £ 40. For more details and full access to the paper, please refer to the site.

Questions:

1. What infringements of copyright have occurred in the above circumstances ?

2. What rights does the trade mark give us to take legal action in against the sellers of the film, and presuming they can be found, the illegal copiers ? 

3. Do any criminal acts result from either the actions of the retailers or manufacturers of the pirate DVD’s ? If so, what are the maximum penalties for such acts ?

Answers:

1: Infringement of copy right

In general copy right means a legal right which is preserved to the creator for a specific span of time for print, publish, perform, film, or record any of his literary, artistic, or musical material. According section 1 of Copyright, Designs and Patents Act 1988, copyright is any unique literary, dramatic, musical or artistic works, sound recordings, films or any of the printing arrangement of available editions.

Section 5B of Copyright, Designs and Patents Act 1988 specifically deals with Films. Film includes recording on any of the medium, where moving image can be produced. The sound track supplementary to a film shall also be taken into consideration.[1]Section 6 deals with broadcasting. Broadcasting means and includes transmission of any visual image or sounds to the public.

Section 16, 17 also describes the circumstances under which coping a copyrighted item can infringe copyright laws.

For a film both of this above mentioned section can be applied. If someone copies the film and shows it or sells it then it infringes the copy right.

2: Infringement of trade mark:

According to Trade Marks Act 1994 a trade mark includes any sign able of being represented graphically or which is capable of individualize goods or services of one enterprise to another. A trade mark generally includes designs, letters, numbers or the shape of product or their packaging etc.

Arsenal FC plc v Reed [2] was a land mark case in relation to trade mark. Arsenal FC is a football club, which have their own registered trademarks. Matthew Reed had distributed souvenirs with that registered trademarks of the Arsenal FC. Arsenal Football Club takes legal action against Matthew Reed. They alleged that Mr. Reed had violates certain of the registered trademarks. The main judgment was on the question that whether the utilization of the sign harm guarantee of original. The court says that it harms the trade mark laws. The decision is supportive to original product owners who are in the hunt for the enforcement of their rights against suppliers of unauthorized products using their marks.

In the light of the case we can say that infringements of trade mark laws for cinematographic films also be happened if someone uses the particular sign or symbols which exclusively preserves for the owner of the films.

3: Criminal remedy

Under copyright law:

Section 107 specifies that if an individual commits an infringement without the license of the copyright proprietor the person shall be liable for custody for a term not more than six months or a fine not more than £50,000, or both and on conviction on indictment it can fine or custody for a term not more than 10 years or both. If an individual infringes any copyright and  transmitting the work to the public in general [section 107(2A)], he shall be punishable with imprisonment not more than three months or  with a fine not more than £50,000, or both; and on  conviction on indictment it a fine or custody for a term not more than two years, or both.[4]

Under trade mark law:

 A person commits an breach of trademark with no consent of the proprietor can be imprisoned for not more than 6 months or for a fine of £5,000 or in case of Indictment the term of imprisonment is 10 years(section 92 of According to Trade Marks Act 1994).[5]

Right of the buyers against the seller of the defective DVDs under Sale of Goods Act, 1979

It was found that around 75% of the pirated DVD’s were also defective or inappropriate because they have been recorded on very poor quality blank DVD’s from which the film cannot be watched properly.

The major fact in issues is that the sellers of those DVDs delivered defective goods to the innocent buyers. Section 13 of Sale of Goods Act, 1979 describes the provision relating to sale by description. This section specifically describe that the goods must be according to the description claim by the seller.

Section 12 of the Act[6] also specifies about some implied conditions regarding the sale of goods. This section tells that it is implied condition that the seller has the title of the goods which he passes to the buyer. In Beale v. Taylor[7] it was happened that Taylor prints a commercial to sell a automobile telling it as “white, 1961, herald. Beale came to examine the car. He did not get a test drive, but sat on the traveler side. After this he also noticed a metallic round on the back of the car which indicates 1200. He purchased the car assuming it to be the 1961 model.[8] But later he found that car is not satisfactory. The mechanic after examination told him that the automobile was combined of two machines together. Beale sue Taylor for breach of contract. Court held that both the parties are innocent because by an ordinary examination of the particular good no one can determine the defect in it. This is a sale by description but the buyer examine the car before buying it. Beale entitled to get the price difference.

There are various specific sections of Sales of Goods Act, 1979 which specifically deals with the provisions relating to defect of a good. 

  • Section 14 (2) (a) indicate that if the goods can be examined by the buyer at the time of the sale takes place then it’s the duty of the buyer to check it properly otherwise he cannot claim the defense of defective goods later.

  • Section 15 also specifies that if any good is sold by sample then the sample will represent the whole bulk of product.

  • Section 22 (1) state that when the goods are sold in market overt and the buyer buyers the product in good faith without knowing any defect on it, buyers acquire a good title.

In all the above mentioned sections of Sales of goods Act, 1979 indicate that if the buyer is aware that he/she is purchasing a defective goods then he/she never succeed in a case of breach of agreement of sale. But if the buyers are bona fide buyer then he has the right to sue the seller. If the buyers of those pirated DVDs know that the DVDs are pirated then they are well aware about the fact that the seller has no right to sell because they don’t have the proper title. So in this case they cannot claim any right against those products. But if the buyers are innocent and relied that the retailer has the proper title to sell it then they can sue the retailer for misappropriation and delivery of defective goods under Sales of goods Act, 1979.

References

  • uk, `Intellectual Property Crime And Infringement - Detailed Guidance - GOV.UK` (2014) accessed 24 March 2015

  • uk, `Intellectual Property Offences - GOV.UK` (2015) accessed 24 March 2015

  • uk, `Trade Marks Act 1994 - Publications - GOV.UK` (2008) accessed 24 March 2015

  • gov.uk, `Copyright, Designs And Patents Act 1988` (2015) accessed 24 March 2015

  • gov.uk, `Sale Of Goods Act 1979` (2015) accessed 24 March 2015

  • Verma V, `Beale V. Taylor` (wordpress.com, 2012) accessed 24 March 2015

  • Arsenal FC plc v Reed[2003] ch

  • Beale v Taylor(1967) 3 ALL Er

[1] Section 5B of Copyright, Designs and Patents Act 1988

[2] Arsenal FC plc v Reed [2003] Ch.

[3] Copyright, Designs and Patents Act 1988

[4]Gov.uk, `Intellectual Property Crime And Infringement - Detailed Guidance - GOV.UK` (2014) accessed 24 March 2015.

[5]Gov.uk, `Intellectual Property Offences - GOV.UK` (2015) accessed 24 March 2015.

[6] Sale of Goods Act,1979

[7] Beale v Taylor (1967) 3 ALL Er

[8] Vivek Verma, `Beale V. Taylor` (Indiancaselaws.wordpress.com, 2012) accessed 24 March 2015.


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