scholarly journals Foreing and domestic experience in protecting intellectual property right to jewelry and jewelry

2021 ◽  
pp. 31-37
Author(s):  
Nadiia Fedorova
Keyword(s):  
Intellectual Property ◽  
Los Angeles ◽  
Industrial Design ◽  
Copyright Infringement ◽  
Unfair Competition ◽  
Intellectual Property Right ◽  
The Us ◽  
Protecting Intellectual Property ◽  
Intellectual Property Infringement ◽  
Jewelry Design

Key words: copyright, jewelry, bijouterie, unfair competition, trademark, litigation Fedorova N. Foreing and domestic experience in protecting intellectual property right to jewelry and jewelry. The article focuses on studying the issue of protecting the design of artistic jewelry and bijouterie. The concept of “functionality” for jewelry is analyzed, namely, it is determined that the «functionality» notion is the quality of servicing the useful purpose. For example, a chair manufacturer cannot claim the four legs of a chair as a copyright. These four legs are a useful and functional aspect of this chair. If a competitor also manufactures a chair with 4 legs, it does not infringe any manufacturer's right, since these legs are for functional purposes only. The concept of«functionality» in jewelry means that the last cannot be protected as a normal work, since it is purely utilitarian. For example, the hands or numbers on the dial of a watch are considered as functional because the exclusive use of these aspects seriously impedes healthy competition in the watch industry. On the other hand, unique jewelry design cannot be considered functional as it has the exclusive use of its particular elements’ combination.The analysis of European legislation and US judicial practice is carried out. Under applicable US copyright law, jewelry is a subject to copyright. Under normal circumstances, the law does not require prior registration of jewelry copyright. However, in order to protect jewelry or bijouterie under the US Law on Copyright, it must meet certain conditions. The complaining party must provide evidence of illegal copying of the work and prove copyright infringement. In case of violation of copyright for jewelry, the author or the jewelry house must prove:•the originality of design;•the uniqueness in the elements combination in the process of jewelry design development.The object of an industrial design can be a shape, pattern, color, or their combination that determines the appearance of an industrial product. The main criterion for the industrial design patentability is its novelty. However, in practice, an examination for novelty when registering a designation as an industrial design, according to Alexandra Odinets, is not carried out, and the patent is issued «under the responsibility of the applicant».With regard to unfair competition in the jewelry market, according to the US jurisprudence, it is more often an offense in this context than a violation of trademark rights or copyright infringement. It is unfair competition that misleads a consumer. A competitor, by assigning a good name and an reputation established, is trying to get profit. The definition of unfair competition is carried out in a comprehensive manner, here the court will not focus on one feature of a piece of jewelry but would consider all its inherent features. In particular, it is a combination of unique elements that provide the originality of the product.The article provides recommendations for jewelry and bijouterie authors on copyright protection. 1.      Pro avtorski i sumizhni prava : Zakon Ukrainy. URL: https://zakon.rada.gov.ua/laws/show/3792-12#Text. 2.      Tomarov I. Fashion Law: kopiiuvaty ne mozhna zaboronyty! Yurydychna hazeta Online. 2017. № 25(575). URL:https://yur-gazeta.com/publications/practice/zahist-intelektualnoyi-vlasnosti-avtorske-pravo/fashion-law-kopiyuvati-ne-mozhna-zaboroniti.html. 3.      Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971). 4.      Dyrektyva Yevropeiskoho Soiuzu № 98/71. URL: https://zakon.rada.gov.ua/laws/show/994_a88#Text. 5.      “Designer” Jewelry vs. “Inspired-by” Jewelry: Intellectual Property Infringement and Unfair Competition Considerations, 34. 6.      Davis v. Gap, Inc. - 246 F.3d 152 (2d Cir. 2001). 7.      Trifari, Krussman & Fishel, Inc. v Charel Co., 134 F Supp 551 (1955, DC NY). 8.      Copyright Law of the United States §102, at 68 (2000). 9.      Cprava Vacheron I Constantin-LeCoultreWatches, Inc. proty Benrus Watch Co., Inc. URL: http://saperlaw.com/blog/wp-content/uploads/2007/09/cba-fashion-presentation-final.pdf (last visited April 19th, 2008). 10.    Cosmetic Ideas, Inc. v. IAC/Interactivecorp, CV08-02074 R (C.D. California); Los Angeles Copyright Attorneys File Jewelry Copyright Infringement Lawsuit Over Copying Protected Jewelry Design, available at: http://www.iptrademarkattorney.com/2008/04/copyright-attorneys-jewelry-los-angeles-protected-jewelry-design-lawsuit-copying-copyrights-la.html (last visited April 19th, 2008). 11.    Saper Law. “Designer” Jewelry vs. “Inspired-by” Jewelry:  Intellectual Property Infringement and Unfair Competition Considerations. 2008.  

Part I The Nature of Intangible Property, 7 Intellectual Property

2018 ◽  
Author(s):  
Smith Marcus ◽  
Leslie Nico
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Industrial Design ◽  
Property Right ◽  
Moral Rights ◽  
Intellectual Property Right ◽  
Confidential Information ◽  
The Right

This chapter examines intellectual property. The governing principles relating to intellectual property are very different from the principles that underlie other choses, like rights under contracts or debts. Like shares, intellectual property rights are characterized by specific statutory rules relating to their creation, as well as to their transfer. Intellectual property rights can be divided under six heads: patents; copyright; moral rights; industrial design rights; trademarks; and confidential information. In each case, the holder of the right is able—by virtue of ownership—to prevent others from doing what they otherwise could do. Each of these intellectual property rights has four different aspects: the intellectual property right itself; rights of action for infringement; validity challenges; and licensing.

Old wine in a new bottle? Assessing the injunction remedy for intellectual property disputes in China

2021 ◽  
Vol 11 (3) ◽  
pp. 295-313
Author(s):  
Peicheng Wu ◽  
Charlie Xiao-chuan Weng
Keyword(s):  
Intellectual Property ◽  
Civil Law ◽  
Civil Procedure ◽  
Injunctive Relief ◽  
The Us ◽  
Intellectual Property Infringement ◽  
Judicial Interpretations

The landmark eBay case in the US has noticeably influenced Chinese judicial practices concerning intellectual property injunctions. The injunctive relief in intellectual property infringement cases in China has witnessed a change from a traditional automatic-granting approach to a more equitable approach. However, there are still some issues, namely: the standards of awarding injunctive relief in intellectual property cases are unclear; the civil law tradition and procedure can create issues when applying for injunctions; and the scope of the injunction could be disproportionate in certain cases. In order to address these concerns, China needs to publish judicial interpretations to clarify that the eBay test can be applied to both preliminary injunctions and permanent injunctions. China should further polish up its civil procedure legislation to enable a permanent injunction to be effective immediately, even at the first instance, and to allow the parties to an intellectual property contract to have agreements on conditions of applying for injunctive relief. Additionally, Chinese courts should adopt a proportionate method in determining cases regarding intellectual property injunctions.

TIM THALER'S EXAMPLE IS CONTAGIOUS: THE RIGHT TO PUBLICITY AS AN INTELLECTUAL PROPERTY RIGHT

2021 ◽  
pp. 180-186
Author(s):  
E.A. Afanasieva ◽  
◽  
E.G. Afanasieva
Keyword(s):  
Intellectual Property ◽  
Property Right ◽  
Intellectual Property Right ◽  
Us States ◽  
Commercial Use ◽  
Right Of Publicity ◽  
The Us ◽  
Public World ◽  
The Right

Most of the articles presented in this review were written in order to discuss the recently published J. Rothman’s book «The right of publicity: Privacy reimagined for a public world». We are talking about a specific intellectual right recognized by most of the US states - the right of a person to control the commercial use of elements of her personality.

scholarly journals THE USE OF A PATENT BY CO-AUTH ORS AND HEIRS FOR COMMERCIAL PURPOSES AND SOME ISSUES OF PUBLICITY IN PROCEEDINGS RELATED TO DISPUTES OVER INTELLECTUAL RIGHT PROTECTION

2020 ◽  
Vol 3 ◽  
pp. 24-27
Author(s):  
Tatyana V. Ivanova ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Property Right ◽  
Intellectual Property Right ◽  
Special Method ◽  
Procedural Information ◽  
Protecting Intellectual Property ◽  
The Right ◽  
Exclusive Right

The article considers certain situations that arise while using a patent for an invention by co-authors and successors and some issues of publicity in legal disputes over the protection of intellectual property rights. The invention created by a team of authors serves as the basis for the association of co-authors in an organization aimed at the commercial use of a patent. The exclusive right to a patent shall transfer to the successors, but the right to membership in the organization where the patent was supposed to be used may not be transferred, in which case the successors shall have limited access to information on the use of the patent. Various secrets, confidentiality of information, unavailability of information, complexity of protecting intellectual property rights, complex relationship between members of the organization and successors represent only some of the problems that create obstacles to the normal exercise of the right to use a patent for an invention and to get profit from its use. There is no special method to protect intellectual property right, such as the request to provide access to the information on shared use of a patent. The publicity principle, being one of the principles of legal proceedings, provides the condition for defining the truth in the process of proving, the court provides the conditions for the timely receipt by the participants of the required and sufficient procedural information on a particular case. The publicity of information in a legal case is most likely to provide the opportunity to satisfy a claim for the protection of intellectual property right. The right to membership in the organization, in which the patent was supposed to be used when it had been developed by the co-authors of the organization, can be considered as a guarantee for the right to use the patent. The exclusion of at least one element from this system shall create unequal rights and shall make it impossible to achieve a result — receive profit from the use of a patent.

scholarly journals Pirate-states: Imagining the geography of media piracy

2020 ◽  
pp. 136787791985082
Author(s):  
Paul McDonald
Keyword(s):  
Intellectual Property ◽  
Copyright Infringement ◽  
Media Industries ◽  
The West ◽  
The Us ◽  
The World ◽  
Us Government ◽  
Cultural Content ◽  
Special 301 ◽  
Discursive Power

Intellectual property (IP) history has long pointed to certain nations as sources of copyright infringement, but these linkages are now systematically produced through annual Special 301 reporting by the US government and media industries. Exploring connections between infringement and nation, this article poses three concepts. Anti-piracy discourse produces a pirate repertoire, a stock of familiar transgressive figures deployed in efforts to combat piracy. These include the pirate-state, a figure used to name and shame nations as hotspots for IP infringement. Cumulatively, pirate-states form a broader geography of media piracy, mapping the world in terms of hubs for unauthorized flows of cultural content. This article views the Special 301 as a representational mechanism for creating a centre–periphery vision imagining ‘the West’ and its infringing others. Although 301 reporting can therefore be read as a statement of discursive power, the article argues this influence remains circumscribed, as is shown by the case of Ukraine.

scholarly journals INTELLECTUAL PROPERTY RIGHTS ON TRADE DRESS: FEATURES AND GENERAL CHARACTERISTICS

2019 ◽  
pp. 49-53
Author(s):  
M.S. Utkina ◽  
I.V. Savytska
Keyword(s):  
Intellectual Property ◽  
Case Law ◽  
Legal Regulation ◽  
Corporate Identity ◽  
Intellectual Property Right ◽  
The Us ◽  
Trade Dress ◽  
Complete Procedure ◽  
Business Entities ◽  
The Individual

The article is devoted to a topical issue that is being discussed by foreign and domestic scientists and business entities – trade dress. This issue has been sharply raised by the owners, in particular the developers of the individual design of their product and its packaging or services. Recently, exactly trade dress is very difficult to protect, especially when competitors or other individuals, who want to profit from someone else’s intellectual property, use it for their own purposes. This affects the reputation of the manufacturer, leading to a decrease in the number of goods sold, which has been “unique” for consumers and now is just simply one of many others that has the same design, color combination, or product form. The article defines the concept of trade dress, describes its main features and functions that it performs, being an important element of the brand. In addition, there was analyzed the case law in Ukraine concerning the protection of the plaintiff’s intellectual property right to corporate identity. The legislative status of such a concept in the US and its regulation have also been investigated. Having analyzed the main characteristics of the trade dress, its specific features were identified, defining it as an independent key element of the brand that cannot be equaled. The main feature can be called the uniqueness and originality of style, which aims to individualize the goods or services of a particular entity. Another feature is the new commercial style that distinguishes a product or service from others, making it more visible to the consumer. The core features of corporate identity can essentially be deduced from the very content of the concept, which focuses on identifying, advertising, and demonstrating the ability to trust the manufacturer by consumers who have already purchased a product or service. The Law of Ukraine “On Protection against Unfair Competition” was also investigated, which in fact lays the foundations for protecting the trade dress of a product or service in Ukraine. Therefore, it can be considered that in this area Ukraine has great potential that will lead to full legal regulation of the notion of “trade dress” and possibly define a complete procedure for its protection. Keywords: trade dress; uniqueness; goods; trademark; regulation; design; entity.

Protecting User Interfaces

2017 ◽  
Author(s):  
Noam Shemtov
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
User Interfaces ◽  
Patent Protection ◽  
The United States ◽  
Graphical User Interfaces ◽  
Unfair Competition ◽  
European Patent ◽  
Intellectual Property Rights Protection

This chapter examines the scope of protection to which graphical user interfaces may be eligible under various intellectual property rights: namely, trade marks, unfair-competition laws, design rights, copyright, and patents. It first considers the extent of copyright protection over a software product’s ‘look-and-feel’ elements, with particular emphasis on graphical user interfaces protection under US and EU laws. It then discusses trade-mark, trade-dress, and unfair-competition protection for graphical user interfaces, along with intellectual property rights protection for design patents and registered designs. Finally, it describes the patent protection for graphical user interfaces in the United States and at the European Patent Office.

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