Intellectual property law (UK) Essay Example | Topics and Well Written Essays - 2000 words

Intellectual property law (UK) - Essay Example The present UK law regulating trademarks is the Trade Marks Act 1994. According to the Act, a "trade mark" means any sign capable of being represented graphically, which is capable of distinguishing goods or services of one undertaking from those of other undertakings. A trademark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging.1 It is clear that any sign, including designs, is capable of being registrable when conditions are met. Shape of goods can be registered as trademarks. Though not explicitly worded, it is accepted that shapes include both two-dimensional and three-dimensional shapes. The general elements of a trademark include the capability of being represented graphically and distinguishing the goods or service from those of other undertakings. The distinguishing, or, distinctive capability of a trademark is essential, which can be seen from many UK and EU cases. For example, in the Procter & Gamble Company v Office for Harmonisation in the Internal Market, a registration was applied for a square tablet with slightly rounded edges and corners, but the registrar refused the application under Article 38 of Regulation No 40/94 on the ground that the mark applied for was devoid of any distinctive character.2 Descriptive Trade Marks This trademarks law is in contrast to what we will refer to as "descriptive" trade marks-that is, naming a product or company using words that describe what it is or what it sells. For instance, if one were to open a blue jean manufacturer in London, and refer to the company as "London Blue Jeans" this is considered a "descriptive trademark, and until recently was not allowed under UK law due to the highly descriptive nature and arrangement of the words. Rights of Trade Marks The UK Trade Mark Act 1994 Article 9 (1) provides that "the proprietor of a registered trade mark has exclusive rights in the trade mark which are infringed by use of the trade mark in the United Kingdom without his consent." This article and Article 43 (1), which provides that the registration of a trade mark may be renewed at the request of the proprietor so long as the renewal fee has been paid3, conferred actually perpetual monopoly on the proprietors. Purpose and rationale: General rationale of IP law The intellectual property rights, argued by economists, are accorded in that if everyone would be allowed to take the advantage of the results of innovative and creative activities freely, the problems of "free rider" would have been rise. Therefore, no one would try to create anything, such as a car or plane if no special advantages would be given, and the economic growth and prosperity would become impossible. The IP law, to solve the problem, confers rights on those who invested (the creator, inventor or who paid for it) on the creations the right of monopoly to ensure that they would make use of the creation to maximize profits4. However, at the same time, there is also a principle of IP law to afford free accesses to those rights to the public after a certain period of monopoly in that it will enhance the economic development of the society with trade mark as an exception. Purpose and rationale: Trade Marks Law The function of trade marks, non-exceptive