Intellectual Property Law

Question 1

The first case study is of Joe, who has discovered a way of making Kava in to a drink. The drink combines melo-melo kava that has been prepared in the traditional Vanatu way, combined with coconut juice and hibiscus flowers. Joe needs to start selling his Kava around where he lives so he will not have issues of export or import.

In the context of the Patents Act of Fiji, there has to be an invention and the inventor. Invention, according to Act has been defined as any new process used in manufacturing, or any new method that can be used to improve the existing processes. Patent law in Fiji covers recipes too, but only those that are unique and cannot be confused with other common recipes. The combination has not been used before in Fiji for any invention, so he qualifies for the patent. In order to patent the recipe, Joe has to find the unique thing about his drink, which is the making of kava into a drink and adding coconut juice and hibiscus flowers. The first step is getting a patent application where he is required to describe how he came up with the recipe. Joe is required to explain how his recipe is useful in case the patent application doubts the usefulness of his recipe. He then has to demonstrate that his innovation is new, which is the demanding part. Here, novelty is tested, and if it is found to be similar to another recipe, the patent application is rejected. Joe then has to show that his recipe is non-obvious, and it can be identified from other recipes. The patent examiner checks for previously patented recipes for any obviousness. Obviousness is checked, and the patent examiner can decline a request saying the recipe was ‘obvious to try’. Joe’s recipe is counter intuitive by converting kava into a drink, and then adding coconut juice and hibiscus flowers. As a result, he would convince the patent examiner of originality, uniqueness, not obvious, and counter intuition and hence get the patent. The process is set according to Fijis Patent Act Cap 239.

Joe has decided to name his drink Coconut-Hibiscus kava and he needed to find out whether he could trademark it. According to Fiji’s Trademarks Act (Cap 240), the name ‘trademark’ is used to refer to a mark that is used upon given goods in a country, and to show that they authentically belong to a certain proprietor. The ownership can be in terms of certification, manufacture or selection. Since Joe manufactured the Coconut-Hibiscus Kava, he will be able to register it to the Administrator General’s office, as a trademark.

Question 3

In the second case, the National TV Service of Australia uses a locally written song as its signature tune, when they start and end their broadcast. They have been playing it for the last 15 years, but the song was first published on tape 20years ago. At the time, there was no intellectual property legislation that was enacted. The owner of the song, Ela Mari did not give consent for its use, and the TV service never paid her any royalties. However, she never wrote any objection letter to the TV station. In copyright, the author is defined as the person who creates the product in question. If the author has not registered his creative work according to the law, as is the case with Mari, ownership id defined by use of enquiry. In order for her to make any claim of owning of the song, she will have to first register with the Copyright Society in his area of jurisdiction. With that, she can approach the Supreme Court with the case for it to confront the abroad TV Service. The Service infringed Mari’s rights because they made a copy of the work in question, and it had already been published. However, I would ask Mari if she had any concrete evidence to prove she was the author of the song. Also, she has to show that she has published it before there was proper intellectual property legislation. If the court finds he has a solid ground for the case, she has a claim in copyright infringement. She is hence subject to a considerable compensation from the TV Service for all the years they played the song. This is according to Fiji’s Copyright Act 1999.

Part Two

In part two of the questions, I did question 4 and question 6.

Question 4

According to Samoa’s Patent Act Cap 239, a patent can be described as a legal document giving a named owner the right to an invention for commercial purposes. Normally, the exclusive rights are given for a period of 20 years, and other manufacturers cannot use the idea before then. If any manufacturer attempted to use the idea, the inventor has the right to take all the financial gains from it. Patent protection aims at motivating inventions because if I did not exist, inventors would not bother creating for it would be copied by competitors. Any original work qualifies to have patent protection or any legally allowed modification of an original work. The Patent Office of Samoa decided on whether to issue patent or not on products. The product that needs patent protection has to be useful and have a prospect of producing financial returns. It must also be a work of ingenuity and not just any solution that anybody could formulate. Computer software can only be patented if it is usable and has a financial return. However, patent protection can be denied if the product is a copy of an already existing piece of work. Forgery is punishable according to Samoa’s Law, and the perpetrator can be imprisoned. It can also be denied if the product does not have any economic value to the individual or country. It has to be something creative that will change the financial situation of any sector of the economy. The process of attaining a patent protection is involving, and a product goes through only if it is truly authentic.

Question 6

Trading infringement can be defined as violating any elite rights relating to a trademark without the trademark owner allowing it. Infringement can occur in a case where one party provides trademark that is confusingly similar to an already registered trademark. In that case, the owner of the trademark is entitled to seek legal help to help in prosecuting the infringer. In the Fiji, it is probable for an unregistered trademark to be infringed unlike in other nations. Mostly, trademarks are infringed when an unscrupulous seller sells his product with a trademark that is similar in appearance to another trademark. This is prohibited by the law and any victims of it can seek legal advice from a lawyer to sue the perpetrator. After the original owner of the idea notices that there has been an infringement, he can get a permanent injunction to stop the infringer from further use of the trademark. The trademark owner should also legally seek monetary compensation for use of his trademark to earn income. Infringement can also be done through blurring of the real identity of a trademark. Customers are attracted to the distinctiveness of any product, and if it is used on an assortment of goods, then it loses its uniqueness. Tarnishing on a trademark can also happen where the usage of the two trademarks does not relate. For example, a company selling medical drugs can have the slogan ‘makes you feel better’, and a beer company can decide to use the same slogan. People who do not consume alcohol will not choose the authentic drug when they find it on the counter because of the beer mentality. This, however, is also punishable by the law, through a theory of dilution can stop the distribution of the imitation product.

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