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luni, 25 februarie 2013

Proprietate intelectuala in engleza

Proprietate intelectuala in engleza  
I Copyright
 a) What is the principal purpose of copyright laws?
 (Include in your answer a description of the types of works that are protected and an example of the duration of such protection).
      The principal purpose of copyright laws is the protection work of the human intellect, the domain  - protection of literary and artistic works. Copyright laws doesn’t protected ideas, but the final product of the human intellect.
     The national legislation on protection of the copyrights of the majority of the countries provides protection of the following kinds of products:
·      literary products (the stories, novels, poem …);
·      pieces of music (music, songs operas, operetta, …);
·      product of fine art (graphic works and product of architecture, sculpture, particularly picture …);
·      product with scientific or technical content (plans, drawings, maps …);
·      cinematographic, photographic and other visual or audio-visual works;
·      computer program .
     The minimal period of validity of the copyright under the Bern Convention is 50 years from the end of year of the author’s death. In the European Union and for European countries, the term is now 70 years from the end of year in which the author died, and the same period has been written into the US legislation / so that it consists 70 years. There is thus a definite tendency to prolong protection from 50 to 70 years. In the Republic of  Moldova the term is 50 years from the end of year in which the author died.

b)  Describe three types of rights that a copyright holder may have.
There are two aspects of types of rights that a copyright holder may have.
The first: Copyright holder may have three types of rights:
·      the right of reproduction (involves the classic and modern methods. For example: authorize photocopies, printed copies, tape recording and copying of the tape recordings…);
·      the right of performance (is considered communication of the work to the public);
·      the right of adaptation and translation (adaptation is generally understood as a modification of a work to create another work, for example adapting a novel to make a motion picture; translation means the expression of a work in a language other than that of the original version).
The second: Copyright holder may have three types of rights:
·        exclusive rights (use the work as he wishes, prevent others from using it without his authorization);
·        economic rights (economic rights of the type can be transferred or assigned to other owners usually for a sum of money or royalties depending on
the proposed usage of the work);
·        moral rights (moral rights can never be transferred, they always remain with the original author of the work).

c) What is the name of the oldest  international convention concerning copyright?
     The oldest international convention concerning copyright is Berne Convention for the Protection of Literary and Artistic works from September 9, 1886, completed at Paris on May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revises at Rome on June 2, 1928, at Brussels on June 26, 1948, at Stockholm on July 14, 1967, and at Paris on July 24, 1971, and amended on September 28, 1979.
     In the contents of the Convention allocate rule about a minimum level of protection, three basic principles (principle of independence of protection, principle of a national regime, principle of automatic protection), and special rules about the developing countries.

 II Related Rights
 a) Describe the three categories of beneficiaries for related rights and give the duration of their rights as given by the Rome Convention and the TRIPs agreement. 
     There are three categories of beneficiaries for related rights:
·      the rights of performers;
·      the rights of recordings;
·      the rights of broadcasting.
     The rights of performers are recognized because their creative intervention is necessary to give life and because they gave a justifiable interest in legal protection of their individual interpretations.
     The rights of recordings  are recognized because their creative, financial and organisational resources are necessary to make recorded sound available to the public in the form of commercial phonograms.
     The rights of broadcastingorganizations are recognized because their role in making works available to the public, and in light of their justified interest in controlling the transmission and retransmission of their broadcasts.
      The duration of protection of related rights under the Rome Conventions is 20 years from the end of the calendar year in which: the performance took place, when performances not included in phonograms; the fixation (recording) is made, in the case of phonograms and performances included in phonograms; the broadcast took place.
     In the mire recent TRIPs Agreement, the rights of performers and producers of phonograms are to be protected for 50 years from the date of the fixation or the performance, and the rights of broadcasting organizations for 20 years from the date of the broadcast.

III Trademarks and Geographical Indications

a) What are the differences between a trademark and a geographical indication?
     A trademark is a sign that an individual trader or company uses to distinguish its own goods or services from the goods or services of competitors. A geographical indication is an expression with a “place-goods”. Geographical indication of the goods is understood as a designation, directly or indirectly  indicating on a place of the valid origin or manufacturing of the goods. If a trademark is registered by a single holder he is the one who has exclusive rights for its usage but geographical indication must be available for usage by all the producers in that region.


 b) Describe the two main requirements of a Trademark in order to register it under the terms of the Madrid agreement and explain the process for registration of a trademark and why registration is advantageous.
There are basically two main characteristics features for a trade mark:
·      it must be distinctive (to distinguish the goods and services of one the physical or legal persons from the homogeneous goods and services of other physical or legal persons );
·      it should not be deceptive, liable to mislead, or if it breaks the public order or morels.
     Before the international registration the trademark should be registered at a national level. The international registration give the possibility to register the trademark in the countries where was acceded Madrid agreement. Every application for international registration must be presented on the form. The applicant must indicate the goods or services in respect of which protection of the mark is claimed and also, if possible, the corresponding class or classes according to the classification established by the Nice Agreement Concerning the International Classification of Goods and Services for the Registration of Marks. The international Bureau shall register immediately the marks. The registration shall bear the date of the application for international registration in the country of origin, provided that the application has been received by the International Bureau within a period of two months from that date. If the application has not been received within that period, the International Bureau shall record it as at the date on which it received the said application. The international Bureau shall notify such registration without delay to the countries that have been designated, which with then have the possibility of refusing protection. They would normally examine it as though it were an application filed with them direct and apply their normal national criteria accordingly. However, protection may not  be refused, even partially, by reason only that national legislation would not permit registration except in a limited number of classes or for a limited number of goods or services. Registered marks shall be published in a periodical journal issues by the International Bureau, on the basis of the particulars contained in the application for registration. So we can see that such an easy system of trademarks registration may lead to the reduction of money expenses and it can save time for the registration of trademarks in different countries.

c) What are the main methods mentioned that a company might use to protect  its investment  in a trademark?
     The most common way of protecting a trademark is to have it registered in the Trademark Register in all of the countries (it has been registered) that you would wish to use it in. Though registration is  not the only way of protecting a trademark: can be protected after long use and a good reputation. It is possible to require the protection conferred by the laws on unfair competition

d) Explain how a geographical indication may be protected internationally.
      A geografical indication may be registrated internationaly on the base of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of October 31, 1958. As long as the appellation of origin is protected in the home country, all other Lisbon countries are obligates to protect it, but such protection can always be challenged in a court. The protected national appellation of origin is deposited at WIPO in Geneva and extended to all Lisbon Union countries.
     There are several multinational treaties currently addressing, in one respect or another geographical indication:
·      Paris Convention for the Protection of industrial Property of march 20, 1883, which says that geographical indications must be protected against any unauthorised use that is misleading  ;
·      Madrid Arrangement Concerning the Prevention of False or Misleading Indications of Source of 1891, which last time was reconsidered in 1967. A strength is its provision for mandatory seizure of any product bearing a false designation of source imported into any of the contracting states.
·      WTO TRIP’s Agreement of 1994, makes it clear that registration is no longer necessary for protection of geographical indications. For example, the U.S. protects geographical indications through unfair competition law as well as through federal regulations without the necessity of registration.

e) What is the difference between a geographical indication and an appellation of origin?
     Appellations of origin are specific types of geographical indication. A geographical indication is a notice stating that a given product comes  from a particular area. An appellation of origin is a more precise geographical indication which specifies that the product in question has certain qualities and that those qualities are due essentially or exclusively to its place of origin. The underlying idea is that certain products own their special qualities to the place that they come from.
     Basically an appellation of origin is a geographical indication that declares the         quality of the goods for which it is used to be derived essentially or exclusively from the area of production.

IV. Industrial Design
a)  Explain what an industrial design is in about 50 words.
    
Industrial design refers to the creative activity.  The subject matter of the legal protection of industrial design is not articles or products, but rather the design which is applied to or embodied in such articles or products.
     It's the appearance of a product, for example the specific features or lines or contours, colors or shape or materials of a product or the ornamentation given to it. It's something that is essentially decorative as opposed to functional, something that appeals to the eye.
     An industrial design is that aspect of a useful article which is ornamental or aesthetic. It may consist of three-dimensional features such as the shape or surface of the article, or two-dimensional features such as patterns, lines or color.
     Industrial designs are applied to a wide variety of products of industry or handicraft: from watches, jewelry, fashion and other luxury items, to industrial and medical implements; from house ware, furniture and electrical appliances to vehicles and architectural structures; from practical goods and textile designs to leisure items, such as toys and pet accessories.

b) Explain the differences between industrial design protection and patent protection?
     An industrial design is a type of intellectual property concerned with the look and form of an object and which is not determined by technical or functional necessity and should not be confused with a patent whose purpose is to protect an invention. A  patent usually protects technical innovation, in other words an invention which must differ from what is already known by some new and non-obvious technical feature, whereas a design protects the appearance of a product which from the strictly technical point of view may not be original, but from an aesthetic or appearance point of view is new and original.
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c) Explain the general conditions needed for the protection of an industrial design.
     In most countries in order to be registered, the design:
·        must be 'new'or 'original';
·        is capable of being used in industry, or in respect of articles prodused on a large scale;
·        must be applied to utilitarian articles;
·        is applied to or embodied in an article must have an appearance which is capable of visual judgement;
·        does not be dictated solely by the function which the article is to perform.

d)  What is the typical protection offered to an industrial design?

In most countries an industrial design must be registered in order to be protected under industrial design law. The term of protection is typically for 5 years with the possibility of renewal, which may total, in most countries, up to a maximum of 15 to 25 years (in Republic of Moldodva - 25 years). The minimum required by the TRIPS Agreement is ten years.
By protecting an industrial design, the owner of the design is given a right against its unauthorized copying or imitation by third parties.
It is possible, if certain conditions are met, to protect industrial designs under copyright law or the law against unfair competition.
e) What is the purpose of the Hague Agreement on industrial designs and how does it work?

The Hague Agreement, which is administered by WIPO, allows nationals and residents of, or companies established in, a State party to the Agreement, to obtain industrial design protection in a number of countries also party to the Agreement through a simple procedure. A single international deposit in one language (English or French), involving a single payment and filed with one office, is all that is needed. The office can be the International Bureau of WIPO or possibly the national office of the contracting state.
It works in the same way as the Madrid system in that you file an international application which is entered in the International Register, published by the International Bureau and notified to the countries concerned, who then have the right to grant or refuse protection. In fact, as far as the Hague Agreement is concerned, there are very few countries that actually examine applications, and consequently very, very few refusals. This is in sharp contrast to the position regarding trademarks.
Another difference between the protection of industrial designs under the Hague Agreement and the protection of marks under the Madrid Agreement and Protocol is that you don't need to start with protection in the country of origin.

V  Patents
 a) Describe in 100 words or less the purpose of a patent and indicate the general conditions for the award  of a patent.
     Patents are one of the oldest forms of intellectual property protection, the purpose of a patent is to provide a form of protection for technological advances (inventions). It provide an award for the disclosure of the creation of something new as well as for the further development, or refinement, of existing technologies. In short, through patents, progress in changing technologies finds incentive to improve.
     The patent is a monopoly right to the exclusive use of an invention and can last for a maximum of 20 years.
     An invention must meet several criteria if it is to be eligible for patent protection. These include, most significantly, that the invention must consist of patentable subject matter the invention must be industrially applicable (useful), it must be new (novel), it must exhibit a sufficient “inventive step” (be non-obvious), and the disclosure of the invention in the patent application must meet certain standards.

b) What are the benefits of a patent and who is responsible for taking the initiative to enforce a patent?
     The advantages of a patent can be divided in personal and public. The personal benefits in patent protection is that the owner of the patent can exclude third parties from making, using, selling or importing products of services which incorporate his invention without his consent. This however does not necessarily give the inventor or the owner of the patent to use the invention, if such use would be illegal - as the use of the gambling machine would once have been - but the owner of the patent can prevent others from marketing and profiting from the invention for a period of years. The term of a patent is typically  20 years from the date on which the application is filed, and gives the developer of the technology the right to have it to himself for a certain number of years in exchange for full disclosure to the public of how to use it. When the patent rights expire, the technology becomes public property, and the public are free to use it for their own good. This term valid the same for every country in the world, it is now provided by international treaty.

c)   Give two examples of the types of things that are not usually patentable and list 3 characteristics that an invention must have in order to be patent protected.
     The characteristics that an invention must have in order to be patent protected are:
·      novelty;
·      inventive step;
·      it is susceptible of industrial application.
     An invention shall be considered to be new if it does not form part of the state of the art. The state of the art shall be held to comprise everything made available to the public in any part of the before the priority date (day, month, year) of the invention concerned.
    An invention shall be considered as involving an inventive step if, having regard that he state or the art it is not obvious to a person skilled in the art.
     An invention shall be considered as susceptible of industrial application if it can be used in industry, agriculture or any other field of activity.
     Examples of exception from list of patentable objects are:
·      scientific theories and mathematical methods;
·      schemes, rules and methods for doing business;
·      methods of treatment for human or animals or diagnostic methods;
·      things discovered in nature;
·      machines that defy the laws of nature, such as a perpetual motion machine.
     Cannot be patented things discovered in nature and machines that defy the laws of nature, such as a perpetual motion machine.

VI. WIPO Administered registrations systems
a)  In 100 words or less, describe the purpose of the Madrid System and draw a diagram explaining the process of how an applicant can use the Madrid system to get protection for a trademark in different countries.
     The Madrid system of international registration of marks is an essential tool enabling trademark owners to apply for protection of their marks in several countries of the world with one single operation and therefor with great savings in terms of money and tine.
     The Madrid system is governed by two treaties: the Madrid Agreement which dates from 1891 and the Madrid Protocol which came into operation on April 1, 1996 (the Republic of Moldova is party on both). Procedures concerning the system are governed by the Common Regulations under the Madrid Agreement and the Madrid Protocol. 
     The diagram explaining the process of how an applicant can use the Madrid system to get protection for a trademark in different countries:

 















b) What is the system for the international deposit of Industrial Designs?
     The Hague System of protection deals with the protection of industrial designs.
     The Hague System is governed by the Hague Agreement Concerning the International Deposit of Industrial Design which dates from November 6, 1925 (London Act 1934 and The Hague Act 1960; Geneva Act 1999 - are not in force, but Republic of Moldova deposited its instrument of ratification on December 19, 2001). Procedures concerning the system are governed by the Regulations under the Hague Agreement.

c) What is the Patent Cooperation Treaty (PCT)?
     The Patent Cooperation Treaty (PCT) is international agreement. PCT is signed in Washington of June 19, 1970 and has come into force on January 24, 1978. The states party to this Treaty constitute a Union for cooperation in the filling, searching and examination of applications for the protection of inventions and for rendering special technical services.    

d) Describe the process of using the PCT. Include a diagram of the process involved using PCT, making sure to include the 4 necessary steps.
 
International phase
 
 Country
A
 
     An International applications is filed with the national Office, which will act as a PCT receiving Office. Only a single set of fees is incurred for the preparation and filing of the international application. The receiving Office, after having accorded an international filing date and made a formal check, sends a copy of the international application to the International Bureau of WIPO (the “record copy”) and another copy (the “search copy”) to the International Searching Authority. Every international application is subjected to an international search carried out by International Searching Authorities. The results of the international search are given in an international search report. The International Bureau includes the search report in the international publication of the international application and sends a copy to the designated Offices.  The publication announced in the PCT Gazette at the end of 18th  months of the filing date of application. Also the applicant may make a specific request for international preliminary examination. The processing of an international application before the designated (or elected) Offices - the national phase - may not start prior to the expiration of 20 months (or 30 months if Chapter II is applicable) from the priority date of the international application. Once national processing starts, the normal national procedures apply and the national a office decide to grand or refuse a patent.
      Applicant files application, designating the countries of interest
 
 
International search
 
 
International publication
 

 International preliminary examination
 
 



















VII. Unfair Competition
a) Explain in about 50 words what is meant by unfair competition. List 6 major categories of unfair competition and give an example for each.
The idea of unfair competition has been around some time and was mentioned as part of intellectual property protection as early as 1900 in the Brussels revision of the Paris Convention. An act of unfair competition is any act of competition contrary to honest practices in industrial or commercial matters. For example, the following in particular shall be prohibited:
·      all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor;
·      false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;
·      indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods."
There are many different types of acts of unfair competition including:
1.      Causing confusion (organizaition which is completely separate from large organization known under the trademark “Toys R Us” would begin to sell computers in a store called “Games R Us”)
2.      Misleading (the product with packaging that used the stars and stripes flag as decoration product was not made in the USA)
3.      Discrediting Competitors  (saying that a competitor's yogurt was made from stale milk)
4.      Violation of trade secrets
5.      Taking advantage of another's achievements or free riding (similar mark is used for dissimilar goods or services)
6.      Comparative advertising (claming that one's own product as good as the other or is better than other).

VIII. Protection of new varieties of plants
a) Explain in about 50 words the purpose of giving plant breeders protection for their work.
Protection is available to a new variety of plants to safeguard the interests of plant breeders as an incentive to the development of improved plant varieties for agriculture, horticulture and forestry. Improved varieties are a necessary and a very cost-effective element in the improvement of the performance and quality of plants of all types.

b) List and explain in about 40 words the different characteristics of a new plant variety that would enable it to be protected.
A new plant variety that would enable it to be protected should be:
1.      New (or novel)
2.      Distinct
3.      Uniform
4.      Stable
5.      Have a satisfactory denomination.

The noveltyrequirement serves to ensure that the variety has not already been exploited commercially. This is strictly a legal assessment and not a technical assessment.

There are three technical assessments: distinctness, uniformity and stability.
Distinctness
The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety, whose existence is a matter of common knowledge, at the time of filing the application. The exact technical definition of distinctness resides in the biological description of the variety and is beyond the scope of this module. It is sufficient to say that a technical expert would be required to give an opinion on this matter.
Uniformity
The variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.
Briefly, this means that the plants of a variety should all be the same or very similar, with the degree of similarity depending on the nature of the propagation method.
Stability
The variety shall be deemed to be stable if the characteristics remained unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
What this means in short is that the variety should remain the same over a period of repeated propagation from seeds or other methods.
Of course all of these last three technical criteria have to be examined before the granting of the breeders' rights. Such technical examinations are conducted by authorized examiners.

The variety is also required to be designated by a denomination which will be its generic designation.

c) What is the role of the International Union for the protection of new varieties of plants (UPOV)?
The organization overseeing the protection of new plant varieties is referred to as UPOV, which is an acronym derived from the French name for the organization, Union internationale pour la protection des obtentions végétales.
Most countries that have introduced plant breeders' rights have done it using special legislation based on the UPOV Convention, which is administered by the Office of the Union based in Geneva.

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