Post 9: Copyright Act 1987

Copyright is legally binding to protect author or creator of an original work, including the right of copy and distribute. Many company will fill copyright, trademark, patents, industrial design rights, trade secrets on their intellectual properties because those are intangible asset for a company.

The intellectual property is a term referring to the creations of the mind. Creation of the mind include music, note, novel, artistic works, discoveries and inventions, design and even any words, symbol and buildings.

Why need to generate copyright?
Simple, this is to protect your work from pirating by other or vice verse.

How to generate copyright?
To generate the copyright, there are two very important element you must know:

1) Originally - the creation must not be copied from others, and must creative enough
2) Fixation - the thing that you wish to fill copyright must at least reduced to a fix form, like paper or book

Note: Idea is not copyrightable.

Do we need to register to get protected?
Copyright itself doesn't not need an official registeration, any created work is considered protected by copyright as soon as the work exists. But certain countries have a national copyright office and some national laws allow the created work to be registered, during any copyright cases those registered will be serve as the highest important evidence in the court.

In Malaysia, the national copyright office is call Intellectual Property Corporation of Malaysia. You can visit the web http://www.myipo.gov.my/.

How to consider copyright infringement?
When a person publishes copyrighted materials, publicly display or performs copyrighted material or performs any act that reduces the value of the copyrighted works.

But however, certain product is not considered as infringement of copyright if the copyrighted material is used for purposes of non-profit research, private study, criticism, review or the reporting of current events. For those we call it as Fair Use, but if this product would like to use it in public, then it must be accompanied by acknowledgement of the title of the work and its authorship.

Post 10: Copyright Case 1

Oprah Sued for Plagiarism: Writer Charles Harris Says Star Read His Work on Talk Show

October 28, 2010

"NEW YORK (CBS) A Philadelphia writer is suing Oprah Winfrey for plagiarism, after she allegedly read on her talk show passages from a political booklet he penned, without permission. ......"

Please click for news details

This is a copyright case happen in New York, where the complainant Charles Harris filled a lawsuit clamming
the language and structure of the questions came out from Oprah Winfrey were exactly the same on his work "How American Elects Her Presidents" which he send some booklet to the show in years ago.

But however from the star 29-March-2011,

"A federal judge in Pennsylvania has tossed out an author's US$100 million lawsuit against Oprah Winfrey for violating the copyright in the political booklet, How America Elects Her Presidents... "

Please click for news details

"Which one of our presidents weighed the most ?"; "William Howard Taft at 327 pounds" Is the question and answer that use to argue in this copyright issue.

Winfrey told the judge to dismiss the lawsuit saying that Harris' lawyers should know that the fact of American presidents are not copyrightable. But the lawyers said compilation of facts based on the selection and arrangement can be copyrightable. However Winfrey pointed out that Harris didn't register his work as a compilation, and it lacked originality, among other things.
 
U.S. District Court Judge Jan DuBois agreed that Harris' work is ''not original,'' and that Winfrey's use of the Fat Taft fact, even if she did learn it from Harris' book, was not an infringement.


Lesson learned from the case:

1) The work must be "originally". In this case, the Harris' work is not creative enough as the questions are based on fact.

2) The infringement would not be consider if is based on fact.

Post 11: the Trade Marks Act 1976

Copyright and trademarks are both intellectual property refer to different area. Copyright is legally binding to protect author or creator of an original work, while the trademarks protect the word, name, symbol or device of a good to identify it from other goods.

For example, HONDA and NISSAN are both popular car manufacturer in the market. To identify the different between HONDA vs NISSAN car, they can be identify via their logo, name, design, performance or spec. Logo and name is the trademarks belong to the company, while the design, performance and spec would be the copyright of the company. Besides, slogan "the power of dreams" - HONDA and slogan "shift the way you move" - NISSAN are also trademarked by both company.

To use a trademarks, the very beginning is to register the trade marks, in section 32(2) of the Trade Marks Act 1976, the registration of a trade marks shall be for a period of 10 years but can be renewed from time to time.

However, there is term and conditions if you want to register a trademarks. A trademarks shall not be registered as a trademark if

1. if the trademarks cause confusion to the public;
2. if it contain any scandalous or offensive matter; example picture of naked girl or picture that sensitive to certain religion would not be protected by any court of law.
3. if it contain a matter which in the opinion of the Register is or might be prejudicial to the interest or security of the nation;
4. if the trademarks had registered or well known;
5. if it contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the mark for such good in M'sia is of such nature as to mislead the public as to the true place of origin of the goods ; or
6. if it is a mark for wines which contains or consists of a geographical indication identifying wines, or is a mark for spirits which contains of a geographical indication identifying spirits, not originating in the place indicated by the geographical indication in question.

Any person who use a registered trademark or nearly resembling the trademark that cause confusion in the public is consider a trademark infringement.

The most happen trademarks issue in the cyber space can be easily fall under the domain name conflict.

Domain name is the name chosen by the owner which indicate the owner web site address, domain name can be easier to remember instead of publishing an Internet protocol address which in series of numbers form. For example: http://www.google.com/ is the domain name registered under google corporation, http://www.google.com/ can be also call as 209.85.175.103. Domain name is trademark-able, and the issue usually occur when the registered domain name is misleading public which we call domain name conflict or being used in bad faith.

Bear in mind, the domain name is register under first come first serve basis.
Domain name conflict or trademark conflict can be occurred in few ways, which are

1. Cybersquatting;
2. Typosquatting;
3. Commentary or tarnishment;
4. registration of domain names of the competitors.

Post 12: Cybersquatting and Cases

Since domain name is given or registered in first come first serve basis, conflict can be easily occur when one desire domain name is taken by other.

Cybersquatting occur when a owner registered a domain name which consist other owner registered trademark and sell it to the owner for profit purposes.

Cybersquatting case 1: Madonna vs Parisi

"A pornographer who has registered hundreds of domain names could lose one of the biggest gems in his collection: Madonna.com. ..."

Read more: http://news.cnet.com/2100-1023-244734.html#ixzz1J9FeBUMN

Complainant: Madonna

Respondent: Dan Parisi

Parisi, who operates adult entertainment site Whitehouse.com purchased Madonna.com in 1998 for $20'000 from a bulk domain name registrar. However, Madonna who runs her own site at Madonnafanclub.com, has filled a complaint with WIPO to reclaim Madonna.com.

In order to win the arbitration, Madonna has to prove that Parisi register the domain name

1. the Trademark is belong to the complainant
2. the Trademark infringement is confusing public
3. that the respondent has no legitimate interests in respect of the domain name (fair use), and
4. the domain name had been registered and used in bad faith

On the other hand, if Parisi want to win the arbitration, then he has to prove that

1. good reason for the selection of Madonna as a domain name
2. is not confusing public
3. used in good faith

Decision: Favor fall on complainant, the domain name should be tranferred to the complainant.

Reason:

Madonna had registered her name Madonna as her trademark for entertainment services and related goods since 1979. Hence the domain name registered by respondent Parisi is definitely trademark infringement where it confusing public and misleading consumers into thinking the site is somehow related to Madonna.

Pasiri also failed to provide the panel with a resonable explanation why he chose Madonna as a domain name. Furthermore, the registered domain name is also found used in bad faith where Parisi used the address with the intent to attract Internet users to a pornographic Web site.

Cybersquatting Case 2: Nikon Sdn Bhd vs First Web Enterprise

Post 13: Typosquatting and Case

Typosquatting is referring to those registered domain name which is close to the actual domain name where it occur differently in a common misspelling of a trademark, intended typo error, a differently phrased domain name or missing the dot. Typosquatting is intended or targeted to catch the web users who make typographical error when entering a web site address.

Typosquatting Case: Edmunds.com vs Digi Real Estate Foundation (2006)

For details, please visit: http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-1043.html

Complainant: Edmunds.com, Inc US

Respondent: Digi Real Estate Foundation, Panama

Disputed website: edmundss.com

Observation and lesson learned:

Domain name edmundss.com registered by the respondent is confusingly similar to complainant Edmund’s trademark with an extra letter ‘s’. Edmund’s trademark has been registered by the complainant and www.edmunds.com has been launched since 1995 which was used for automotive information website and is now of the leading online resource for automotive information.

To make any decision, the panel always consider 3 elements according to UDPR policy

1)  Is the disputed domain name confusingly similar

2)  Rights or Legitimate Interests (fair use)

3)  Is it used in bad faith

In fact, the disputed domain name is clearly a typosquatting where it only different from the complainant trademark with an additional letter ‘s’ at the end. Double typing is an easily made typo error by the internet user, when this happen it lead user to a different web. Hence edmundss.com is confusingly similar.

Respondent does not fair use with the registered domain name, where the content of the disputed web is observe similar. Respondent also fail to give any reasonable reason why the domain name was registered.

By offering similar contents, the respondent is expecting commercial gain by attracting the internet users who make typo error, this clearly shown bad faith in using the edmundss.com. Furthermore, respondent has a history of registering domain name in bad faith.

As a result, Panel orders that the domain name edmundss.com be transferred to the complainant.