Introduction
In the modern world, people are often creative and it has been witnessed by the rising number of inventions, art, literary works, and commerce. Therefore it is of important value to protect the ideas of a particular individual from infringement or unauthorized use from other people since the idea belongs to one person. For instance, this paper seeks to answer problems that Belinda encountered during the invention of the machine (PETOMETER).
Trademark Registration
First, Belinda is supposed to register her invention and the business name to refute claims from other people. This also gives her monopoly over the ownership of the design of the PETOMETER.
The protection period of the trademark name is 10 years after which Belinda has to show Mark to renew the brand after the initial period has expired. This is also evidence that she is the owner of the trademark.
It is impossible that Belinda can register the name of the business as ANIMALTREADMILL because the business deals with products of the animal treadmill. This trademark name is similar to the product (animal treadmill) and can not be accepted for registration. This trademark describes the goods and therefore can not be registered (Aplin and Davies, 2009).
Belinda must register the name of the business since she is entitled to benefits such as exclusive rights to the ownership of the trademark, a good trademark will market the goods for the business, the protection period for the trademark is unlimited, a trademark will assist in taking the legal action against those that have infringed the Mark. Finally. The trademark is one’s property and can be sold or leased. However, there is no legal requirement to register the business (Aplin and Davies, 2009).
Belinda can take action through common law of passing off if someone used her trademark without her permission. Passing off requires that Belinda has factual evidence that the trademark belongs to her. However, the act of passing off is expensive and impossible to prove the evidence provided by the defendant (Bainbridge and Howell, 2009).
Application for registration can be done by post, personal, or online at the Intellectual Property Office. Application is done at a fee by filling the trademark form, denoted as TM3. Information that is required to be filled includes; request for registration, identification, and address of the applicant, and information about the relationship of goods to the name of the business (Hart, Fazzani, and Clark, 2009).
After filling out the form the application is sent to Trade Mark Registry for examination. The Mark that is examined should be capable of being represented graphically and should have distinctive features. The trademark is published in the Trade Mark Journal after it has been accepted. Opposition to the trademark can be done within 3 months of publication and the trademark is registered if there is no objection. Belinda should register her invention in classes 1-34 (Hart, Fazzani, and Clark, 2009)
There is no infringement when Belinda is accused of using a similar trademark name i.e. PETOMETER and SPEEDOMETER.
This is because even though the trademark names sound similar, the two businesses are dealing with a different products. PETOMETER is dealing with animal thread mills while SPEEDOMETER deals with motorbikes (Bently and Sherman, 2008).
Copyright Protection
Belinda would have no copyright protection. This is because copyright only protects the work that is fixed.
Both the prototype of the treadmill and the instructional manual will be protected by copyright law. The category that they fall under is the literal works.
One of the requirements that Belinda needs to afford copyright protection is the originality of the expression and form and not the originality of the idea. Also, Belinda requires to record her invention to access the copyright. The copyright protection lasts for 70 years from the death of Belinda (Aplin and Davies, 2009).
There are both primary and secondary infringements in this case. The exclusive right for the copyright of Belinda is not guaranteed since there is no monopoly in the primary infringement. There is nothing that Belinda could do about the primary infringement since copying is allowed without the permission of the owner. However, for the secondary infringement, Belinda is entitled to claim in court for fair dealing. However, the defendant may cite incidental inclusion as the defense against the offense that has been committed. The possible remedies to the infringement done to Belinda are relief of damage done to her, injunctions, or accounts (Bainbridge and Howell, 2009).
Belinda would remain with the ownership of the copyright even if she sells the copyright to another person.
Registered Design Rights
The features in the design of PETOMETER are protected by the Registered Design Rights since they are visible and are located on the exterior of the PETOMETER. The protection for registered design rights lasts for 25 years from the last date of registration (Anderson, 1994).
There are requirements that Belinda should meet to obtain registration of the design right. One of the requirements is that the design should be new and have an individual character that distinguishes the design from the existing designs. Belinda is required to unveil the design within the grace period of 12 months to refute claims from possible opposition parties (Aplin and Davies, 2009).
The circular bowl in the PETOMETER will be protected by Unregistered Design Right (UDR) since it is a functional design. On the other hand, the rim on the edge is not protected by the unregistered Design Right since it is fitted for the aspect to perform its function (Anderson, 1994).
Belinda has exclusive rights to the design therefore she is entitled to use legal ways to accuse someone who has infringed the rights of the design. It is known that Belinda has obtained registration for the design of her invention, therefore, there is a monopoly i.e. she is capable of taking legal action against the people who have used the idea of the invention without her permission (Gurry, 1999).
There is the possibility that the accused may defend him by citing the fact that Belinda did not make out her case. Consequently, his invention might create a different impression as compared to that one of Belinda.
Alternatively, the accused may defend him by saying the design lacked distinguishing characteristics during the time of application of registration.
On the side of Belinda, she might defend herself by stating that she is the owner of the design and she reserves the right to the design. She may go further by saying the accused did not obtain her permission to use the design in his invention.
The remedies that Belinda should take include the following; an account of profit, injunction, damages, or an order for the destruction of the offending products. An account of profit entails the ability of Belinda to take the benefits of the infringer since he used the idea without the prior permission of Belinda. An injunction includes refraining the illegal party to engage in the trade. The final remedy to Belinda is about confiscating the offensive article from the defendant (Bainbridge and Howell, 2009)
Conclusion
In conclusion, Belinda must understand the need to register her business in the Intellectual Property Office to be accorded the exclusive rights for the invention. After the registration, Belinda’s invention will be protected against copyright, infringement of the trademark, and design.
In my opinion, it is advantageous to register the business since monopoly is guaranteed; there is unlimited protection of the invention and finally, the rights of ownership are reserved to the creator.
List of References
Anderson, M.E., 1994. IntellectualPropertyMediations: SpecialTechniquesfor a SpecialField.Texas Intellectual Property Law Journal, 3 (23), pp.23-32.
Aplin, T. and Davies, J., 2009. Intellectual Property Law: Text, Cases, and Materials. London: Oxford University Press.
Bainbridge, D. and Howell, C., 2009. Intellectual Property Law (Law Express). Aston: Longman Publishers.
Bently, L. and Sherman, B., 2008. Intellectual Property Law. 3rd ed. London: Oxford University Press.
Gurry, F., 1999. The Dispute Resolution Services of the World Intellectual Property Organization.Journal of International Economic Law, 4(28), pp.385-398.
Hart, T., Fazzani, L. and Clark, S, 2009. Intellectual Property Law. 5th ed. Hampshire: Macmillan Publisher Limited.