Intellectual Property Issues on the Example of the McDonald’s Trademark Essay (Article)

Introduction

Intellectual property is a complicated matter of human relations. People busy with artistic activities or scientific work often need to legally fix their right for this or that invention they make in order to be able to regulate the use of the invention and participate in any attempts to sell it and share its benefits. Accordingly, the countries of the international community develop laws that regulate intellectual property (IP) relations (Schaper and Volery, 2007). These laws are based on the same notions including patent, trademark, copyright, etc., but they differ from country to country. Australian IP laws have their specificity and the analysis of the proposed case study allows us to apply the Australian IP laws to the facts considered.

Case Summary

The very case under analysis touches upon several issues of patent law and trademark protection law as well. The point in the case is that Jenny and Garry McDonald have invented the machine for gathering horse manure from their land possessions (Backer, 2001). This machine is based on the loan mower technology, incorporates several other already existing agricultural techniques, and uses the computerized software solutions designed directly by Garry. The title chosen for the machine is McDonald’s Muckracker, and the family plant use the trademark of the McDonald’s fast food stores for their invention (Backer, 2001). Thus, several patent and trademark issues can be singled out in this case.

Intellectual Property Issues

The first issue about the case is the right of the inventors to use the inventions of other people, i. e. “a combination of known agricultural techniques”, for their machine (Backer, 2001). As the patent law states, “patents give effective protection if you have invented a new technology that will lead to a product, composition or process with significant long-term commercial gain” (Australian Government, 2009). Drawing from this, if the inventors of the unnamed agricultural techniques have patented them, Mcdonald’s has no legal right to reproduce or use those techniques in any way without the patent owner’s consent.

The point that might solve this controversy is the probability of the fact that the patents for the techniques used by Mcdonald’s have expired without the proper prolongation and fees contribution by their inventors (Backer, 2001). According to the Australian patent law, “the maximum term of a standard patent is 20 years” and beginning from the fifth year of the patent ownership, the owner has to pay annual fees that increase proportionately on every anniversary of the patent filing (Australian Government, 2009). In case if the term of the patent has expired or the owners failed to provide the annual fees for the patent maintenance, the invention by McDonald’s can be registered and used without any issues in this respect.

However, another patent-related issue arises from the promise made by McDonald’s to their neighbor old Clarrie. The issue here is observed in the fact that the neighbor might decide to register the inventions as his one before McDonald’s copes with this task or in case if they drop the idea of registration at all. According to the Australian laws, the procedure of filing and obtaining the patent is time- and funds-consuming; therefore many people decide not to patent their inventions. Without a patent, the invention is unprotected, and the Australian IP Office cannot provide any other help to such inventions but advice: “In that case, you would have to assess the risk of someone obtaining your invention through industrial espionage or, if your invention is a product, by reverse engineering” (Australian Government, 2009). Therefore, if McDonald’s fails to patent their invention, the latter might be patented by another person or used openly by all the competitors in the market.

Further on, the case under consideration presents a trademark-related dispute. The issue here concerns the wish of Mcdonald’s to use the trademark of the fast-food stores of the same title, i. e. McDonald’s, for marking their invention. Jenny and Garry plan to use the yellow letter M as their invention’s logo, but the letter of the color and form they want to use is already a registered trademark of the above-mentioned fast food stores network (Backer, 2001). The Australian trademark law states that “a registered trademark gives you the legal right to use, license or sell it within Australia for the goods and services for which it is registered” (Australian Government, 2009). Therefore, adopting the already registered trademark will cause legal issues for Jenny and Garry if they decide to market their invention openly in Australia or any other country. To avoid problems, McDonald’s should look for another logo for their invention, check it with the Australia IP Office for being already in use, and if it is free, register it before other inventors do it.

Conclusions

Thus, besides the obvious usefulness of the invention by the McDonalds, its registration and further introduction to the market are complicated by the evident patent and trademark issues that need to be solved before the invention is widely promoted or sold.

References

1. Australian Government. (2009). Patents. Web.
2. Backer, C. (2001). Intellectual Property Issues Case Study. School of Business, University of Ballarat.
3. Schaper, M. and Volery, T. (2007). Entrepreneurship and Small Business. 2^nd Pacific Rim Edition, Milton, Qld: John Wiley & Sons Australia.