Question 1
Upon reviewing the copyright rules, it is evident that there are a number of applicable copyright codes that have been put in place for different companies and organizations. These copyright codes established the minimum copyright standards and also put in place repair, alteration, maintenance, and copyright application standards of organizations. These standards have been put in place in an attempt to protect the welfare, safety and health of the general public. These copyright codes that have been put in place were adopted and amended by most countries. The standards are outlined in form of electronic copies making them accessible to anyone. Some parts of the code consist of model standards and codes. From time to time, the company department issues interpretations and clarifications of the codes in order to provide guidance to users. Besides, the department also issues clarifications on issues that are frequently encountered. The opposition of trademark applications of A and B should be applied within three months of their publication. The first step of the opposition process is for the Smack Agency to file a notice of opposition for both A and B. within the first two months of filing the files, the client should then file further counter-statements in order to ensure that the trademarks are not abandoned. During this period the other two companies may file counter statements as well but the client has the option of replying to them or not to. The tests conducted on the copyright names found in the structure were very inclusive and extensive. For this reason, it is clear that the results that were obtained from the tests were accurate regarding the cause of using the names. In addition, based on the case study, it is clear that the tests were performed in compliance to the standards laid out by copyright issuers.
Question Two
A copyright is an intellectual right of ownership that is granted to property owners in relation to set laws. Although there are some exceptions in this case, property owners are given rights to enjoy their originality. Some common examples of works where copyrights laws are evident include works of fiction, artists painting, architectural designs, sculptures, and music. The United States was the first country to incorporate these laws in their judicial systems. This took place in 1976. There are certain requirements that must be considered in order to receive a copyright protection. Original expression is one such requirement. In regard to this, authors’ work must involve an expression of thought that is unique and which has never been used anywhere else. Additionally, the work must be new and significantly different from others. To ensure that one receives a copyright protection, it is also a requirement that the work be reduced into a tangible form. For instance, music or novels must be presented in printed or worksheet forms. In cases where copyright laws have been breached, a statement of ground and particulars can be filled. Lodging a notice to oppose would obviously oppose trademark applications in Australia. This statement explains the grounds of the opposition. In regard to this, a statement of grounds and particulars must be supported by facts as well as detailed evidence which acts as a basis towards building a strong case. Therefore, once this statement is received, a decision of whether or not to defend the trademark must be done. To ensure that a successful claim is established the following contents must employee must ensure that the following are included into the document. Name, address, address for service, address for correspondence (if applicable), and Trade Mark details and history.
Question 3
According to the set laws, a statement of grounds and particulars becomes void if a period of two months or more passes before the form or statement is not processed. However, clients can still file new statement after the set time has elapsed but have to follow several sets that have been set by the Australian laws and regulations. According to the set laws, a statement of particulars of grounds and particulars must be filled within one month after the expiry of the first statement. This is usually done with respect to regs 5.7, 17A.34A. The employee should have knowledge of the fees and formalities which must effected during the second application. First, the statement of grounds and particulars must be filled with the same name as the first application. In addition, the statement of grounds and particulars must be filled with the Trade Mark Office for the approved form. There is no fee that is required to file this statement. In regard to Adequacy checking process, the employee must understand that a statement of grounds and particulars, a copy of the filled form must be given to the IRDA holder or the trade mark applicant to ensure that it is processed within the set time. Just like the first application, the employee must ensure that the following particulars are included in the paper. The name and contact details of the opponent, the trade mark number to which the opposition relates, one or more grounds of opposition, and the facts and circumstances forming the basis for each nominated ground.
Question 4
Filing for evidence is one of the major steps that are critical in ensuring that the statement of ground and particulars is processed. Evidence is the material that is placed before court with an aim of ensuring that the judge or the deciding system reaches a more informed decision. In fact, the decision made is limited to the evidence provided2. Therefore it is important to provide as much evidence as possible to ensure that the decision made is solid. However, in most cases clients may fail to provide adequate evidence which is the case in this question. Such challenges may result to delays in form processing or even cancelation. Therefore, it is of paramount importance to ensure the employee is aware of the procedure that should be followed to apply for an extension once enough or right evidence is not presented by the clients. The first stage in this process is filling the extension form. Filling such form has no difference with filling an original statement of grounds and particulars. The procedure is more or less the same. Extension can also be filled in case where there is an error or omission by the client or the register as well as circumstances which are beyond control of a person, the agent, or an employee. The employee has to fill his or her personal details on the extension form provided by the register, information that is protected under the Privacy Act 1988. In addition, all information given in this case will be in line with the IP Australia’s Privacy Policy. Once the personal information is filled in the form, the employee will be engaged into three major components of the extension policy which include the following. Through the policy, the employee will be directed on how he can seek access to and correction of the personal data provided, how a complaint about breach of the privacy Act can be made, and details of the P Australia’s Privacy Contact Officer who will assist in the registration. However, despite the set privacy procedures, the register may decide to disclose the personal information to the holders of relevant international trade marks and the World Intellectual Property Organization. Once personal information is disclosed through the form, the register will be having control over subsequent use and disclosure of the information. By doing so, he will be able to publish the clients name, address, address for service, address for correspondence, and Trade Mark details and history. Once the information is published in the internet, the registrar does not have further control on its use and disclosure. This is because, once the information is held in the online database, it can be retrieved on request. However, the terms and conditions must be considered. In addition to the personal information, the employee will be expected to provide formality details, extension details as well as grounds for filing an application for an extension of time.
Question 5
Amending an existing Trade Mark is possible. However, clients must understand what is exactly amended. For instance, a class of goods and services can be removed or completely deleted from the Trade mark. Therefore, in this case, the client is free to amend the name to include a new plant ‘sativa’. However, there are several steps that client must undertake to ensure that this is achieved. This is because; making such amendments is likely to affect the basis on which the trade mark was made as well as other traders’ rights. In addition, other minor changes that might not affect the clients’ identity may be incorporated in the amendment process. There are minor amendments that can be made through phone; such amendments include topographical errors made by the register, changes to convection application, topographical error in service address, and changes in the endorsement process. However, incorporating a new plant in the Trade Mark is more intense hence cannot be effected over the phone. As a result, a written document will be essential. After the communication to include the name ‘sativa’ has been made through writing, the following process will be critical in ensuring that the change is effected by the registrar. First and foremost, all amendments will have to be considered by the register before the final decision is made3. The registrar must ensure that the amendments done do not lessen the potential adverse impact on other parties. Consequently, the following conditions must be made. Firstly, the amendment must be fair and reasonable. In this case, the client will be required to file a declaration to support his request. To achieve this, the registrar will have to search through the database for any conflicting trademarks. The amendments made will need to be advertised to give room for oppositions. In most cases, this takes place in the Australian Official Journal of Trade Marks. In case the amendment is opposed during the advertising period, the client has to apply for extension while the opposition process gets addressed. A supporting documentation is usually provided to client to test the validity of the request. In my recommendations, I can state that this will be an important decision in ensuring that the products stand out in the market. In regard to amending that application to encompass “Deodorants” and “Gels”, the client must follow a similar process. However, he must ensure that there are no conflicting trademarks.
Question 6
There are several strategies that have been laid to overcome trade mark citations. These have been highlighted in section 26 of the Trade Marks Act 2002. Although these guidelines do not constrain the discretion and judgment of the trade marks, there is need to consider them owing to the fact that each application is considered in its own merits. According to the Subpart 3 of Part 2 of the Trade Marks Act (the Act); there are several grounds that are set relative to not registering a Trade Mark4. For instance, the Commissioner may fail to register the trade mark in on grounds that it conflicts with other Trade Marks or the Trade mark belongs to a different owner. The guidelines given in this case focus on the methods that have been set to overcome a citation both under section 26 of the Act as well as other available means. First, section 26 outlines three situations in which the commissioner must register a trade regardless of whether section 25 withstands or not. In regard to this, there are set methods that if the client applies, overcoming the citations will be very challenging task. They include prior use and notice. In the case of prior use, trade mark examiners will not be able to submissions especially where there are conflicting Trade Marks, specifically, when the data of the mark is cited against the publication. Under the Trade Marks Act, applicants are able to overcome citations by serving notice to the owner of the cited mark. This gave time and chance for the owner of the publication to oppose its registration. However, if the owner of the cited mark provides consent to the cited trade mark, the decision on whether or not to overcome the citations may be reconsidered. Finally, a trade mark may proceed to registration if there is honesty according to the commissioner’s opinion. Such opinion must make possible for the Trade mark to be registered.
Question Seven
There are different cases that have been reported where clients have been striving for non-use removal. Such removal may be based on three main claims. In the first claim, the owner of the trade mark may not have used the trade mark for a long time. In the second case, the owner of the trade mark may not have used it in good faith. In the final case, the trade mark owner may not have any intention to use the trade mark1. Specifically in the content, the trade mark is not use for two main reasons. The first is because the Australian government has imposed trade sanctions on the importation of products containing the plant. Sections of the community are lobbying for these sanctions to be lifted. The second is because global warming has reduced the growth of that plant. In this case, the owner of the trade mark must stay protected and is free to contest the claim to oppose and remove any application related to his trade mark. This is however based on the claim that the trade mark has been in proper use during the stipulated period. The procedures that must be u8deratken by the client include the following. Filing an opposition, Notice of intention to oppose (filed by opponent), Statement of grounds and particulars (filed by opponent), Extension of time, Notice of intention to defend (filed by removal applicant), and Cooling-off period.
Question 8
Basing on the definition of the word trade mark, this will not lawful from the perspective of the Australian Trade Marks laws. According to the Australian government, a Trade Mark is a distinctive sign which is used to distinguish between goods and services. These signs must be produced by a certain company or business organization. Such Trade Marks may include any distinctive word, letter, slogan, device, brand-name, heading, label, ticket, name, signature or numeral or any combination whether in two dimensional or three-dimensional form. Owing to this fact, Falcon is a Trade mark word and using is will be violating the Australian Trade Mark Laws. In regard to customs seizure, the client must understand that goods imported without an imported permit may be seized by the customs. Therefore, there is need to ensure that enough research is conducted and all Trademarks respected.
Question 9
The client must ensure that his international trademark application is submitted as soon as possible after filling a basic application with USPTO. There are two main advantages of using this filling strategy. First, the client will be in a position to prevent other from using his or her Trade Mark. Second, the strategy will generate a rightful perception among public on ownership and quality of the products sold. In regard to the disadvantages, using the Trade Mark on multiple countries may be very expensive.
References
- Belfanti CM. Branding before the brand: Marks, imitations and counterfeits in pre-modern Europe. Business History. 2018 Nov 17;60(8):1127-46.
- Goldberg DP, Rothstein CP, Macedo CR. Lanham Act constitutionality affirmed as six federal REDSKINS-based trade marks are cancelled. Journal of Intellectual Property Law & Practice. 2016 Jan 1;11(1):7-9.
- McGovern E. International trade regulation. Globefield Press; 2018 Jan 16.
- VerSteeg R. Ancient Egyptian Roots of Trademarks. The Antitrust Bulletin. 2018 Sep;63(3):283-304.
