seid naser soltani,
Abstract
Abstract
The territorial principle is one of the fundamental basics of intellectual property rights. This principle allows countries to design the rules of their intellectual property in such a way to facilitate achieving particular social goals. Trademarks are among national capitals of a ...
Read More
Abstract
The territorial principle is one of the fundamental basics of intellectual property rights. This principle allows countries to design the rules of their intellectual property in such a way to facilitate achieving particular social goals. Trademarks are among national capitals of a country including registered and unregistered signs and a third group called famous signs. The territorial principle is the most fundamental explanation in supporting registered trademarks because supporting this sign is according to the law of the country where it is registered. In fact, territoriality is the most basic principle in supporting these rights that is a symbol is supported in the limits of land where it has been registered. According to this principle, if a symbol has been registered in country (A) and is violated in country (B), since the symbol has not been registered and supported in country (B), as a result, no right has been violated in country (B). Although this principle has been criticized in supporting trademarks globally, for example the development of this principle, facilitates violating this right in a country except the country where it is registered, however, some believe that this principle has been able to supply the partnership of intellectual property rights in international trade law system through Paris Convention and international agreements specially TRIPS Agreement. This study tries to analyze and represent the framework of this principle. Also, the most important exception on supporting trademarks territorially is supporting famous signs that supporting this group of signs has been also predicted in international documents like Paris Convention. Regardless of registering or not registering them, this group of signs is legally supportable in all member countries.
Hamed Najafi; mahmoud sadeghi; Morteza Shahbazinia
Abstract
1- Introduction Indirect liability in US, is creation of US case law and plays an important role in the functioning of the trademark system, in order not to mislead the consumer and reduce his search costs, as well as expanded protection of trademark rights. Given the US trade-economic and technological ...
Read More
1- Introduction Indirect liability in US, is creation of US case law and plays an important role in the functioning of the trademark system, in order not to mislead the consumer and reduce his search costs, as well as expanded protection of trademark rights. Given the US trade-economic and technological situation, this practice seems justified, which can well guarantee the US commercial and economic interests, not only in the domestic system, but also in the international trade. Innovation is the foundation of sustainable economic development in the age of knowledge-based economy and technological innovation, play a major role. However, the role of non-technological innovation, including trademarks, in economic growth and development has been considered. However, this role is still secondary and complementary, and it is technological innovation that Determines the power of competitiveness of companies and governments in domestic and international trade. The us is a country that has a privileged position in the world in terms of trade and economy, and this privileged position, without a doubt, depends on its position in the field of technological innovation. Technological innovation has boosted the country's export growth and, consequently, its economic growth by improving its competitiveness. Obviously, in such a situation, strengthening the non-technological innovation system will strengthen the position of technology and will be very effective in protecting the rights of technology owners. With this analysis, regardless of the legal basis of indirect liability for trademark infringement, the recognition of such liability is in line with the US trade-economic and technological situation and can better guarantee and protect its benefits in international trade relations. In contrast, Iranian economic and social system is less desirable than the US in terms of technological innovation. Therefore, the identification of such an institution is not recommended in it and it seems that at least based on the situation of innovation production in Iran and exports in this field, not identifying a similar institution has a logical aspect. On the other hand, the common cases of indirect liability arising from participation in trademark infringement in Iranian law, are subject to the rules governing the determining the liable person under the rule of the combination causes in loss. The application of these rules, such as the rule of liability that takes precedence over the effect, entails the permanent liability of the direct infringer, because at first, his act is effective in infringing the trademark. 2- Theoretical frame work Participation in trademark infringement, is the facilitation or encouragement of trademark infringement without committing the actus reus of trademark infringement. Sometimes, this partnership is proven by not supervising the direct infringing act, in addition to gaining financial benefit from the infringement of the mark, the latter type is called vicarous infringement and the first case is called contributory infringement. Identifying this type of liability expand trademark rights. In terms of economic analysis, broader brand protection leads to productivity if technology is at a high level , because consumers become loyal to higher-tech brands. The relationship between a sense of loyalty to the brand and the technology of the products, makes the rules of indirect trademark infringement in the US described as favorable, and in contrast, due to the low technology of Iranian products in the market compared to US products, lack of explicit identification of Trademark infringement in Iran, seems optimal. 3- Methodology Research data were collected using the library method. Physical and ebooks and articles are the main sources of data for this research. After collecting data in this way, the present study, with an analytical-descriptive method, first examines Concepts about participation in trademark infringement, such as contributory and vicarious infringement, are examined. Then, the principles and foundations of each of these two types of infringement in the US legal system are explained, and then the issue is examined from the perspective of economic analysis. Finally, the legal and economic situation of Iran in relation to the issue of participation in trademark infringement is analyzed. 4- Results & Discussion cases and principles of contributory and vicarious infringement in US are consistent with the business, economic, and technological situation in this country; Technological innovation is in a favorable situation, and for this reason, in accordance with such a situation, the elements ofcontributory and vicarious infringement, have been defined. There is no similar theory in Iranian law and considering the commercial, economic and technological situation in Iran, identifying a similar theory is not recommended. 5- Conclusions & Suggestions The degree of technological development of countries and their political, commercial and economic conditions, especially at the level of international interactions, play a pivotal role in determining the legal policies of countries. Legal regulations are a tool at the disposal of countries to use them to pursue their goals. Accordingly, just as a single intellectual property rights framework is not appropriate for all aspects of this legal system, a single framework cannot be the criterion for action by all countries. The institution of indirect trademark liability has two different outcomes and functions in the two legal and economic systems of Iran and the US; In the US, due to the high level of technological innovation and its superior competitiveness domestically, it leads to the development of legitimate trade competition, and at the level of international interactions, it will increase the country's economic growth through the development of technological innovations. Conversely, recognizing this in Iran will reduce new businesses and legitimate activities domestically, and in the international arena will lead to currency outflows and difficulty in technological innovation due to the transfer of liability risk to legitimate commercial activities and the imposition of foreign trademark management costs on domestic industries.Therefore, the lack of identification of the institution of indirect trademark infringement in Iran and reliance on the general rules of civil liability in this regard, is considered sufficient and especially in the context of scientific and technological sanctions on Iran, it seems more desirable.
Mostafa Bakhtiarvand; Akram Aghamohammadi
Abstract
Nowadays, advertising companies and firms try to establish a trade name which is superior to similar ones. In order to overcome their competitors in advertising campaigns, the firms have adopted new approaches. They use the best and newest marketing and commercial advertising methods to attract potential ...
Read More
Nowadays, advertising companies and firms try to establish a trade name which is superior to similar ones. In order to overcome their competitors in advertising campaigns, the firms have adopted new approaches. They use the best and newest marketing and commercial advertising methods to attract potential customers and consumers. Some advertisers use their competitors' trademarks, trade name, etc. to advertise their goods and services. This kind of advertisements which has increased considerably, is known as comparative advertising and makes it possible for consumers to compare the characteristics of different brands including the quality and price of goods and services and at the same time, in some cases may mislead consumers as to the source of goods and services and lead to unfair competition.
When companies initiate advertising, comparative advertising challenges including those related to intellectual property arise; therefore, the courts are faced with many questions: does using a competitor’s brand or trademark in comparative advertising an infringement of its trademark rights? Is it possible to raise fair use defense against the trademark infringement claim? What rules govern comparative advertising in online environment? In the Unites States, comparative advertisement is used frequently. There are a plenty of legal and economical literature in this regard and a set of specific rules deal with this issue. For example, the Federal Trade Commission, in the 1979 declaration, defined comparative advertising and declared the conditions of its prohibition. In fact, until 1970 comparative advertising had not been dealt with considerably. But since then, the attitudes towards its legality changed and it was welcomed and used frequently. Bixby and Lincoln defined and explained comparative advertising in 1989 (Bixby & Lincoln, 1989). There are other literature in 1993 and 1998 reviewed in this paper (Barry, 1998). In the 20th century, more works were prepared in the United States. For instance, in 2000, Posner discussed comparative advertising and its relation to consumers' confusion (Posner, 2000). In recent years, the relation between comparative advertising and intellectual property has been raised.
In this paper, first are studied the concept and types of comparative advertising, then the rules applicable to such advertisements and finally, the relation between comparative advertising and intellectual property and its main example in this regard, i.e., trademark. The authors have tried to answer the above said questions under the legal systems of the United States, the European Union, India (as a developing country) and Iran.
Theoretical frame work
The Federal Trade Commission has defined comparative advertising as advertisement which, neutrally, compares commercial brands from the viewpoint of quantity, price, introducing by name, image or other distinct information. In simple terms, comparative advertising is a form of commercial advertising in which two or more brands of similar products of the same kind are compared from one or more characteristics of the product. Comparative advertisements compare the goods or services of a company to those of its competitors. This kind of advertising has been designed to highlight the advantages of goods and services offered by advertiser in comparison to those of a competitor.
Comparative advertising may take two forms: direct comparative advertising and indirect comparative advertising. Direct comparative advertising is where the messages encouraging the sale, illustrate the merit of advertisers products in comparison to specific products offered by the competitor recognized by a special name or trademark. In indirect comparative advertising, the relation between compared products is implicitly mentioned but it is not expressly declared that the brand used is compared.
Methodology
This paper, through a descriptive-analytic method, introduces comparative advertising from the perspective of a number of legal systems, namely: the United States as a pioneer in regulating comparative advertising, the European Union which has enacted a directive in this regard, India as a developing country whose experience can help with regulating such kind of advertisement in Iran.
Results & Discussion
In the European Union, directive 2006/114/EC on misleading and comparative advertising has, in certain circumstances, authorized comparative advertising. In India, comparative advertising has not been defined, but according to article 29 of Trade Marks Act 1999, commercial advertising must not contain unfair practices; therefore, comparative advertising may, in some way, be covered by the term unfair practices. In Iranian law, only in some scattered laws and regulations, comparative advertising has been referred to, which do not seem to be sufficient to meet the intellectual property rights holders' interests especially those of trademark holders, given the large volume of commercial advertising.
Conclusions & Suggestions
Some countries such as the United States have a strong set of rules applicable to comparative advertising both in traditional and online environments. In such systems, comparative advertising is allowed under certain circumstances. In Iran, despite scattered laws and regulations which have a limited scope or are restricted to contractual relations, there are no specific provisions dealing with comparative advertising or the possibility of infringing another's trademark in detail. Therefore, given the advantages of comparative advertising and at the same time, in order to prevent possible trademark infringement, it is necessary for the Iranian legislator to pay attention to this kind of advertising and enact new and specific rules regarding this issue and regulate comparative advertising by conditioning it to certain conditions.
