Ethics and Law of IT and Media ST0276 Assignment

Ethics and Law of IT and Media
ST0276

Assignment: 1

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Class: DVMD/FT/2A/03

Student Number
Full Name
LIM ZI JIE
P1743302
NIKISHA TAN-MISHRA
P1736481
FADILLAH BASIR
P1743232
MIKKI HO YAN TING
P1743245

Submitted to: DR CLARENCE NG
Date: 6 JULY 2018

EXECUTIVE SUMMARY
TABLE OF CONTENTS

Page
1. INTRODUCTION …………………………………………………………………
3
2. BACKGROUND ………………………………………………………………….
4
2.1 What is Intellectual Property? ……………………………………………….
4
2.2 Copyright …………………………………………………………………….
4
2.3 Patents ……………………………………………………………………….
5
2.4 Trademarks ………………………………………………………………….
6
2.5 Industrial Designs …………………………………………………………..
6
2.6 Confidential Information and Trade Secrets ………………………………..
7
2.7 Geographical Indications ……………………………………………………
7
2.8 Plant Varieties Protection ……………………………………………………
8
2.9 Layout Designs of Integrated Circuits ………………………………………
9
3. IMPORTANCE OF INTELLECTUAL PROPERTY …………………………….
10
4. DISCUSSION OF TRADEMARK ACT ………………………………………….
12
4.1 What is a Trademark…………………………………………………………
12
4.2 Requirements for Registering a Trademark …………………………………
12
4.3 Registration of a Trademark …………………………………………………
12
4.4 Location-Specific ……………………………………………………………
13
4.5 Class-Specific ……………………………………………………………….
13
4.6 Trademark Infringements ……………………………………………………
13
4.7 Civil Remedies Under TMA …………………………………………………
13
4.8 Distinction Between Trademark and Passing Off ……………………………
13
5. TRADEMARK INFRINGEMENT CASES ……………………………………….
14
5.1 Local Court Case …………………………………………………………….
14
5.2 Overseas Court Case …………………………………………………………
15
6. CONCLUSION …………………………………………………………………….
18
7. REFERENCE LIST ……………………………………………………………….
18

1. INTRODUCTION

The Intellectual property law manages the principles for anchoring and upholding legitimate rights to creations, designs, and aesthetic works. Similarly as the law ensures responsibility for property and land, so too does it secure the selective control of elusive resources. The reason for these laws is to give a motivator for individuals to create innovative works that advantage society, by ensuring that they can benefit from their works without dread of misappropriation by others.
It alludes to the manifestations of the human personalities. It can be an innovation, trademark, design or a brand. Intellectual property is essential for most organisations, and is a device for imagination and development. By ensuring intellectual property, it may pick up an upper hand in the commercial center, empowering it to benefit and develop your business.

There are eight different types of intellectual property in Singapore:
Patent
Trademark
Copyright
Geographical Indications
Layout Designs of Integrated Circuits
Plant Variety Protection
Confidential Information & Trade Secrets
Industrial Design

2. BACKGROUND

2.1 What is Intellectual Property?

Intellectual Property (IP) is a broad term, often used to refer to all handiworks of the human brain, be it inventions, designs, or literary works. As IP often involves time and hard work put in by people, it is important to have laws or rules in place to protect such works from being stolen, misused, or even just to provide more credit to the creator. Such rules are often referred to as Intellectual Property Rights (IPR).

From a business-end, having protection for IP may provide a middle ground between profits for investors and a conducive environment to promote innovation and creativity. Doing so will also provide a competitive edge over competitors in the industry by providing credibility, recognition, and additional source of profit to invest back into the business.

2.2 Copyright

Often the most well-known form of IP, copyright is put in place specifically to protect the rights of literary, dramatic, musical, and artistic works, and more recently, computer programs (which may sometimes be used in conjunction with patents) and databases.

By owning a copyright to the creator’s works, control over how the work is utilised by others or commercialised is given. This allows for restriction of its use and deters theft, misuse, republication, or reproduction of said works without permission by having negative consequences meted out to offenders. Profit could even be made off charging third parties for the use of a piece of work.

While most countries have an option in place to voluntarily register for copyright protection for your works, copyright is often automatically given to all pieces of work that are eligible, without the need to specifically register to obtain such rights. Copyrights also have a particularly long duration, only expiring 70 years after the death of the author or creator.

2.3 Patents

Exclusively for inventions, patents have been implemented to help encourage and foster an environment for new inventions to take place by rewarding and providing recognition to pioneers and inventors in their respective fields.

By applying for a patent for an invention, exclusive ownership of the patent is provided. Theft, misuse, or reproduction of the invention without permission could result in legal actions against the culprit, providing a deterrence against theft of such IP. This further provides the creator more control over their own works. The exclusivity of a patented item may even result in a monopoly, and hence allow for a mark-up in the selling price of said item, or allow for an expected fee from third parties to use, sell, or license it.

For an eligible application, the invention has to fulfil three criteria:
New
Inventive
Capable of Industrial Application

In Singapore, there are two ways to apply for a patent. The first would be to file a domestic application to the Registry of Patents (Intellectual Property Office of Singapore (IPOS)), along with a fee. A second option for a patent outside of Singapore would be to file an international application would be to first receive a written authorisation from IPOS, followed by an application with the Patent Cooperation Treaty with the Registry. The term of protection for a patent would be 20 years.

2.4 Trademarks

Often used in regards to company names or logos, trademarks are specifically put in place to protect the identities of products or services. A successfully registered trademark allows for permission to use a ® symbol after your registered mark, which helps distinguish such businesses from competitors or other similar businesses.

With a registered trademark, value and merit are further added to the business, and lets customers more easily remember or recognise the registered mark, and subsequently, the business. A loyal customer base could even be built, and a monopoly over the use of the mark would surface, allowing for potential economic benefits through licensing its use to third parties, or even selling it. In cases of litigation, having a trademark could also assure legal certainty over ownership of a mark.

So long as the mark is distinguishable, any mark could be registered for a fee, that would be paid to the IPOS, where it may take up to 9 months to fully register the trademark. Although it varies, the term of protection of a trademark often lasts 10 years, but it can be renewed after paying fees.

2.5 Industrial Designs

An IPR for Industrial Designs applies specifically to shape, appearance, colour, patterns, or configuration of a product, both physical and non-physical. In short, it is an IPR for the exterior looks of a product. Note that it is not applicable to computer programmes or circuit designs.

By registering a design, full ownership of it is given to the creator, and its use by others without permission may be restricted or limited. This helps prevent theft or misuse of the design, and legal action may be taken against unpermitted exploitation of the design. Furthermore, monetary gain may be made by requesting a fee for use by others or for commercialised use.
To be eligible, the design sent for application must be a new design, and cannot be solely functional or go against public morals. Applications may be made via the IPOS for SGD$250, and the term of protection lasts an initial 5 years, with subsequent renewals every 5 years for up to 15 years.

2.6 Confidential Information and Trade Secrets

One of the broader forms of IP, Confidential Information and Trade Secrets often refers to information not released to the public, and is private to an individual or company. For information to be eligible as this form of IP, it must be confidential, an obligation of confidence must have been made, and unauthorised use must have been given. Commercially, confidential informations may refer to financial records, operations, or customer particulars, or a method of manufacture that is unique to that company.

Legal action may be taken to any forms of breachment of this confidentiality, and hence this gives protection to individuals’ and companies’ privacies. Breachment of this confidentiality may be regarded as either a criminal or civil offence, and hence compensation may be given should this ever occur, or in the case of a criminal lawsuit, it provides a deterrence against unsolicited leaking of information.

Unlike most other forms of IP, there is no need to apply for Confidential Information and Trade Secrets, and the term of protection is unlimited.

2.7 Geographical Indications

A geographical indication often refers to an identification of a product with origins in a particular or specific geographical location or territory. The geographical indication hence often consists of the place of origin of the item in its title.

By utilising a geographical indication, it may provide a form of credibility or value to the product, reaffirming of its quality and characteristics unique to that location, or confirming the use of traditional manufacturing methods.

In Singapore, there is no need to file a registration to obtain protection under the Geographical Indication Act, and they generally have a renewable 10-year term of protection.

2.8 Plant Varieties Protection

A more niche form of IP, discovering or creating a new / unique plant species could result in seeking protection for the new plant variety, and this protection is known as Plant Varieties Protection.

By registering a plant for plant varieties protection, unpermitted misuse, resale, export, and import are restricted, and helps provide tighter control over ownership of the plant species. Profit could even be made off requiring fees to use the plant for any purposes such as sale.

To be eligible to be registered for the Plant Varieties Protection Act, the plant has to be/have:
New
Distinct
Uniform characteristics
Stable
A name/identification for the plant variety

Applications may be made to IPOS for a fee, and the term of protection may last for up to 25 years, provided it gets renewed every year.

2.9 Layout Designs of Integrated Circuits

Integrated Circuits (ICs) are electronic circuits made of components which function together as a unit in a medium. Layout Designs of Integrated Circuits are an IP with rights put in place to protect these ICs.

When eligible for the Layout-Designs of Integrated Circuits Act, ownership of the IC is given, and unpermitted copying, misuse, and reproduction of the IC is a punishable offence. This deters the theft of people’s ICs for personal gain, and helps provide recognition to the creators of the IC.

In Singapore, there is no need to register with the IPOS for protection of an IC, and the term of protection of ICs created after 15 February 1999 last up to 10 years from its date of creation, and 15 years for ICs created before that.

3. IMPORTANCE OF INTELLECTUAL PROPERTY

Intellectual property is likewise about business and innovation.
Innovation is a ceaseless cycle(loop) of product revelation, improvement and commercialisation that empowers organizations to continue reinvesting in the next generation innovation.

It begins off as a thought. With a strong and best positioned IP administration that support the trend-setters, makers and creators, IP encourages the way towards making an interpretation of these thoughts into significant items and resources. Whenever deliberately and viably utilized, IP upgrades an undertaking aggressive edge, encourages development and accomplishment in achieving the commercial center. IP gives profitable open doors like deals, licensing and key business associations in commercializing it. These thusly can be reinvested into encourage research and development endeavors in new advancements and item improvement.

Intellectual property security is basic to cultivating advancement. Without security of thoughts, organisations and people would not receive the full rewards of their innovations and would concentrate less on innovative work. Additionally, craftsmen would not be completely made up for their manifestations and social imperativeness would endure thus.

The intellectual property rights are important as they can set the business apart from others(competitors), it can be sold or licensed by providing an important revenue stream. It can too, offer customers something new and different and forms an essential part of the marketing or branding and it can also be used as security for loans.

Organizations can build their intensity in an assortment of courses by committing time and assets to the significance of their intellectual property assurance.
Intellectual property resources are a wellspring of significant worth for organizations and for more reasons why they ought to be overseen as a major aspect of a business technique. For example, it can elevate an organization to a main part in its business/exchange field.

It is also very important to secure individual intellectual property as it helps to protect the individual creations or ideas.

By safeguarding, individual can protect their creations against infringement by others and can eventually defend in the courts their sole right to use, to create, to sell or to import them.
It can also prevent others from using, making selling or even from importing then without permission. Individual can also earn royalties by licensing them. It can too, exploit them through strategic alliances and definitely can earn money by selling the creations.

4. DISCUSSION OF TRADEMARK ACT

4.1 What is a Trademark?
A trademark a symbol, word, label that can be represented graphically and is capable of distinguishing goods and services from other goods and services dealt by another person.

Trademark can help protect things like branding and can be applied to brand name, logo, signs, packaging and advertising strategy

In Section 2(1) of the Trademark Act, it states that it must be any sign that includes any letter, word, name, signature, numeral, device, brand, heading, label, ticket, shape, colour that can be represented graphically and has capability of distinguishing goods or services by a person (A) from goods or services provided by any other person (B)

4.2 Requirements for Registering a Trademark
To register for a Trademark there are some requirements that has to be met, it must be a sign that has to be capable of distinguishing goods/services of the trader, it must not be devoid of any distinctive character, it must not be descriptive of the quality and it must also not be a generic word.

4.3 Registration of a Trademark
Upon registering for the Trademark, owners can make use of the trademark with the maximum period of 10 years and can it be renewed. The Trademark also can be used to protect market share and can authorise others to use the Trademark for example licensing to third parties or to sell it.

Trademarks are location specific and class specific.

4.4 Location-Specific
The Trademark that is registered in singapore, only can be used in singapore.

4.5 Class-Specific
Trademark can be used under 34 classes of goods and 11 classes of goods and services
eg.
Class 38 – Telecommunications
Class 40 – Treatment of materials

4.6 Trademark Infringements

4.6.1 Section 27(1)
If the opposite party have the same name and same product and need not show confusion to the consumer, the plaintiff can just sue the opposite party without prove.

4.6.2 Section 27(2)
If the opposite party have the same name and similar product or similar name and same product, which by will show confusion to the consumer, the plaintiff can sue the opposite party with prove.

4.6.3 Section 27(3)
If the opposite party have the same/similar name, different product and if it there is a connection, cause of confusion, cause of damage, the plaintiff can sue the opposite party with prove.

4.7 Civil Remedies Under TMA
The Civil Remedies provided for under the Trademark Act includes injunction and either damages or an account of profits, erase infringing sign/destroy the infringing goods and order for delivery up with a further order for the infringing goods to be destroyed.

4.8 Distinction between Trademark and Passing Off
One must rely on the Trademark Act if his/her mark is registered, on the flipside if One’s mark is not registered he/her can only rely on the common law of Passing Off.

5. TRADEMARK INFRINGEMENT CASES

5.1 Local Court Case
Calvin Klein, Inc and another v Hs International Pte Ltd and others
The case of Calvin Klein, Inc and another v HS International and others 2016 SGHC 214 sheds some light on the liability that negotiator may incur if they are involved in the sale of infringing goods. The fashion designer, Calvin Klein, Inc, sued the operator of the website, Global PSM, and obtained a summary judgement against the operator, after investigators had purchased fake Calvin Klein goods on the SGbuy4u.com website that included wallets and underwear. This is the first reported case involving a summary judgment against a company selling fake online goods in Singapore.

The SGbuy4u.com website allows users to search and buy goods ranging from apparel, bags, shoes, health products and electronics. When a user in Singapore selects, and purchases a desired good, a purchasing order is placed on the Chinese online shopping website Taobao.com. The operators of the business then pay for the goods on Taobao.com, receive delivery of the goods in China, and freight it back to Singapore. Global PSM, which operates the SGbuy4u.com website, argued that it serves as a carrier or freight forwarding service like DHL or FedEx, and that the original sellers on Taobao.com should be liable for the trademark breaches. Global PSM also claimed that it provides customer-to-customer service and merely facilitated the sale and purchase of goods, like the services provided by other e-commerce platforms on the internet (e.g. ebay.com or carousell.com).

Justice Chan stated that “the crux of the dispute lies in the proper characterization of the business and the involvement of each of the defendants in those business activities”.
Firstly, the Judge rejected the submission that SGbuy4u.com merely provides a courier or shipping forwarding service. He considered that SGbuy4u.com collects payments, buys the goods from a seller on Taobao.com and directs the seller to send the goods to a warehouse in Guangzhou. There is no other shipping method by deliverers such as FedEx or DHL.

Secondly the Judge also rejected the claim that Global PSM merely serves as a customer-to-customer service and facilitate the sale and purchase of goods. This is because unlike other e-commerce platforms, SGbuy4u.com plays a more active role in collaborating with the buyer and seller, receiving and making payments, and transporting the goods from the seller to the buyer.

Thirdly the Judge did not consider SGbuy4u.com to be a service that obtain and transfer the desired good without sale to the user. The Judge stated that although the product listings on the SGbuy4u.com website mirror those on the Taobao.com website, it cannot be easily concluded that the users of SGbuy4u.com website are transacting with the Taobao.com sellers or that the SGbuy4u.com website merely facilitates the transaction. The Judge agreed with the Plaintiff that the situation is similar to a seller offering for sale goods that are in someone else’s catalogue. The Judge stated that it is the SGbuy4u.com business, and no one else, that places these product listings on the SGbuy4u.com website.

Finally, the Judge also did not consider SGbuy4u.com to be a seller of goods advertised on the Taobao.com website. The Judge concluded that SGbuy4u.com uses photographs and product descriptions advertised on the Taobao.com website on its own website as a catalogue to make sales to users of the SGbuy4u.com website.

Analysis
In conclusion, the Judge had “no hesitation” in holding Global PSM liable for trademark infringement. He found that Global PSM operates and manages the SGbuy4u.com website, displays the product listings of the infringing goods and allows a user to buy directly from Global PSM on the SGbuy4u.com website.

As acknowledged by the Judge, “there is a pressing need for intellectual property law to keep up with technological advances in order to ensure that the law continues to protect intellectual property and rights owners in real and relevant ways”. With the wide reach and availability of the internet, and the low cost and efficiency of freight services, it is likely to see an increase in the number of online transactions of goods and services in Singapore. It is therefore anticipated that this area of intellectual property law will continue to develop and evolve over the years.

5.2 Overseas Court Case
3M wins v 3N case
A trademark infringement in china on march 07, 2016. Zhejiang court rejected the infringing company’s defence based on it business success, penalised it for refusing to disclose its accounts and awarded damage to the plaintiff which exceeded the statutory limit.The court held the market share of the defendant’s company obtained from it’s continuous trademark infringement activities. In which admitting its defence would indefinitely encourage people to find a way around the liabilities by expanding the scale of infringement which is against the Trademark Law. The court also found that the defendant shall bear the consequences of refusing to accept the burden of proof and shall be awarded the plaintiffs 3.5 Million RMB .

3M Company is an American multinational conglomerate and the owner of two registered “3M” trademarks register number 884963 in October 21, 1996 and March 7, 2010 in class 17 in China.

In December 16, 2005 Changzhou Huawei advanced Material Co., filed for 3N as it trademark in class 19 for designated goods covering luminescent sheet and paving. The trademark application was firstly preliminarily approved by the china trademark office, but was later rejected for registration by the Trademark review and adjudication board in the opposition review procedure.

In November 27, 2013, 3M and 3M china filed a lawsuit against Hua wei and its local distributor before the hangzhou intermediate court based on trademark infringement, seeking a court injunction to stop manufacturing and selling their item, the damages of RMB 5.1 million later raised to RMB 13 million and another RMB 200,000 to cover the rational cost for terminating the infringing activities. In June 30, 2015, the court declare the trademark infringement, ordering the distributor to immediately stop production and order Hua Wei a fine up to RMB 3.5 million to the plaintiff.

The Court held that the 3M trademark had high distinctiveness and reputation, that it was visually similar to the 3N mark, and that the consumers were likely to confuse Hua Wei’s 3N products with those of the plaintiffs, or safe to say there was a certain corporate relations between them.

When analysing the amount of damages, the Court considered the long period and large scale of the infringement activity, and to emphasize that the fact that Hua Wei had deliberately refused to supply its financial records proving the quantity of the infringing products and the budgetary increase obtained from the plaintiff. The court also found that the defendant shall bear the consequences of refusing to accept the burden of proof and shall be awarded the plaintiffs 3.5 Million RMB. With the case far exceeding the statutory limit (RMB 500,000) provided in the year 2001 of the trademark law, which was applicable in this case. Hua Wei appealed for its case.

In September 9, 2015, the Zhejiang High Court made its decision upholding the judgment of first case, finding that the market share and existing consumer group of Hua Wei built from its continuous trademark infringement activities, if being acknowledge by the Court, will possibly encourage trademark infringers to bypass accountability through expanding infringing scales, which clearly oppose the parliamentary purpose and threaten the intrinsic value of the Chinese Trademark Law”. Zhejiang high court in eastern China came up with a decision to uphold the judgment of first instance, market share and existing consumer group of Hua Wei built from it’s continuous trademark infringement activities. If the Court does recognize the mark, it would certainly encourage trademark infringers to find a way around the liabilities through enlarging infringing scales, which clearly goes against the legislative purpose and values of the Chinese Trademark Law.

In the calculation of the damages, the Court followed the same reasoning as the first instance court.

Hua Wei later filed an application for retrial, which was dismissed by the Supreme People’s Court on March 24, 2016.

Analysis
The US company 3M won a recent victory at the Supreme People’s Court (SPC) when the SPC rejected a petition for a retrial by Changzhou Hua Wei Advanced Material Co Ltd (CHW) in respect of an infringement decision over the trademark 3N. CHW was unhappy with being ordered to pay Rmb 3.5 million and filed a petition to the SPC for a retrial seeking to reduce the damages to the statutory limit of Y500,000 ($75,000). To the delight of foreign brand owners, the SPC upheld the ruling of the Zhejiang Higher People’s Court on the filing and the damages awarded in favour of 3M.

The Zhejiang Higher People’s Court’s ruling and reasoning was what any foreign brand owner would hope for. It wasted little time in finding that CHW had repeatedly and over a long period of time infringed 3M’s trademark in China. The court considered several factors.

6. CONCLUSION

To conclude this report, Intellectual Property is critical for an individual or organization to protect. Without legitimate defends set up, one’s organizations thoughts can be recreated by another organization and utilized it for their benefit. Some lawful issues can emerge from IP, yet as long an organization is over the printed material and has a lawyer they can anticipate the vast majority of the issues or battle them if it is vital.

Having safety measures set up can likewise enable an organization to protect their prized formulas. With the utilization of a non-revelation concurrence with a non-contend condition can enable an organization to keep their secret intact for their organization to utilize when it is required. While contracts are established to guarantee a business will do what is required, an agreement rupture is conceivable. The infringement can be settled with representative contribution and in addition intervention to guarantee appropriate determination for the rupture. Utilizing some of the strategies will keep an organization’s IP from getting into the wrong hands.

7. REFERENCE LIST

Akhil Reddy, M. (2015). What are the benefits of registration of geographical indications?. online Quora. Available at: https://www.quora.com/What-are-the-benefits-of-registration-of-geographical-indications Accessed 5 Jul. 2018.

Intellectual Property Office of Singapore. (2018). Understanding Innovation ; IP. online Available at: https://www.ipos.gov.sg/understanding-innovation-ip Accessed 5 Jul. 2018.

Oxford University Innovation. (2018). What is intellectual property?. online Available at: https://innovation.ox.ac.uk/university-members/commercialising-technology/ip-patents-licenses/intellectual-property/ Accessed 5 Jul. 2018.

World Intellectual Property Organization. (2018). What is Intellectual Property?. online Available at: http://www.wipo.int/about-ip/en/ Accessed 5 Jul. 2018.

Singapore Academy of Law. (2017). Calvin Klain, Inc another v HS International Pte Ltd and other (2016) SGHC 214. online
Available at: http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/18621-calvin-klein-inc-and-another-v-hs-international-pte-ltd-and-others Accessed 5 Jul. 2018.

International Law Office. (2018). 3M wins trademark infringement case against 3N. online
Available: https://www.internationallawoffice.com/Newsletters/Intellectual-Property/China/Wan-Hui-Da-Law-Firm-Intellectual-Property-Agency/3M-wins-trademark-infringement-case-against-3N?redir=1 Accessed 5 Jul. 2018.

Ipos.gov.sg. (2018). Patent. online Available at: https://www.ipos.gov.sg/understanding-innovation-ip/patent Accessed 5 Jul. 2018.

Innovaccess. (2018). Introduction to Intellectual Property. online Available at: http://www.innovaccess.eu/introduction-intellectual-property Accessed 5 Jul. 2018.

UKEssays. (2018). Importance of intellectual property rights. online Available at: https://www.ukessays.com/essays/property/importance-of-intellectual-property-rights.php Accessed 5 Jul. 2018.

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