Intellectual Property Law: A Case Study on Trademark Infringement

This report delves into the realm of intellectual property law, focusing on a case study involving Delicious Bakery Pte Ltd and Sweet Treats Pte Ltd. The central issue revolves around trademark infringement, specifically the unauthorized use of the "Aroma Cakes" mark by Sweet Treats. The report outlines the relevant Australian legal framework, including the Trademark Act 1995 and the Crime Act 1914, which protect intellectual property rights. It analyzes the rights of Delicious Bakery as the registered trademark owner, detailing the legal recourse available against Sweet Treats for using the mark without permission. Furthermore, the report explores potential defenses Sweet Treats could employ, such as demonstrating differences in the designs or negotiating with Delicious Bakery. The conclusion emphasizes the importance of intellectual property protection and the consequences of infringement, highlighting the owner's rights to seek legal remedies and the potential penalties for the infringing party. The report references various legal texts and online resources to support its analysis.

INTELLECTUAL PROPERTY LAW

Table of Contents
INTRODUCTION...........................................................................................................................1
ISSUE..............................................................................................................................................1
RELEVANT LAW..........................................................................................................................1
APPLICATION...............................................................................................................................2
a) Rights of owner of Delicious Bakery Pte Ltd.........................................................................2
b) Possible defence for Sweet Treats Pte Ltd..............................................................................3
CONCLUSION................................................................................................................................4
REFERENCES................................................................................................................................5

INTRODUCTION
Intellectual property laws are such rules which have been made by government to secure
and protect legal rights of owner of the property (Bently and Sherman, 2014). Present report is
based on rights of Delicious Bakery pte Ltd. Sweet treats pte Ltd has recently used the mark of
Delicious Bakery.
ISSUE
Intellectual properties are such as patent, trade mark etc. Delicious Bakery Pte Ltd is
working in the bakery field well (Corones, 2014). It has registered the mark called “ AROMA
Cakes”. After the registration now cited firm has rights to use this design and no other bakery
firm can use this mark without taking permission of the entity. But the issue is here that Sweet
Treats Pte Ltd has recently used this mark in its pastry designs. It is legally not acceptable. Sweet
Treats Pte Ltd is required to take prior permission from the owner of this mark before using this
design.
RELEVANT LAW
Australian government has made some regulations in order to protect the intellectual
rights of an owner. No one has rights to use trademarks or patents without taking permission of
the owner (Drahos, 2016). If someone is doing the same then individual is liable to get
punishment. Australian government has made legislation Trademark act 1995. It was amended in
the year 2015. Australian government has developed the strong legal system to protect the rights
of owner of intellectual properties. Any firm can register their unique idea or imagination as
trade mark. This act gives legal protection to the owner and gives rights to sue other if someone
uses this trademark without taking permission from the person (Kaminski, 2013).
The main purpose of trademark protection act 1995 is to defence the rights of person who
has registered intellectual property. Previous act was unable to deal with collective trademark but
now government has made necessary changes in the regulation and have added new principle in
the act. Crime act 1914 clearly defines that if the individual is breaching any regulation then
person will be liable for punishment, it can be monitory or non monitory punishment (Hart,
Clark and Fazzani, 2013). Section 4B (2) and 4(B) 3 of this act states that person will have to pay
appropriate fine for its mistake. As in the case of Delicious Bakery Ltd owner has registration
this trademark which give exclusive rights to individual. This right includes to use trademark for
their own or to make other person authorise to use it (Farran and Paterson, 2013).
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Apart from this, Australian government has made some other legislation related to
intellectual property. These are such as Patents act 1990, Plant breeder's rights act 1994 etc.
Intellectual property act 2015 has been made by the Australian government. The main agenda of
this act is to establish and maintain trademark, design varieties (Vallar and Bolognini, 2014).
Current authorities have made amendments in design act 2003, The plant Breeder's rights act
1994 and trade mark act 1995. As per the recent amendments in trademark act government has
restricted payment for 12 month from its expiry and has give six month grace period to the
owner. Apart from this, patent act 1990, patents regulation act 1991, design act 2003 etc. are
other intellectual property acts of Australia (Drexl, Ruse-Khan and Nadde-Phlix, 2014). Copy
right act is another intellectual property law which has been made to encourage such business
those which are continuously working for creating unique material. This legislation protect rights
of the person and prohibited other individuals to use other's copyright material. Material is
protected by the Australian government under the act of copyright act. For this owner is not
required any specific registration. Under this act confidential information of particular goods and
services such as formula of material, design and method of creation are protected. Such law
gives certain rights to the creators which secure their properties (Sell, 2013).
APPLICATION
For registration of trade mark owner has to pay some amount. Delicious Bakery has
registered its mark with the name of “ Aroma Cakes”. It is well popular in the Australia and
population of the nation like this cake well. But Sweet Treats Pte Ltd has recently used this mark
in its latest pastry. Some customers have ordered this pastry because they like Aroma cakes of
Delicious Bakery Pte Ltd (Jefferson and et.al, 2015).
a) Rights of owner of Delicious Bakery Pte Ltd
Trademark is the different goods and services of the company. Business has to register
their design or unique imagination so that no other person can use such design it their
organization (Drexl, 2014). Trademark offices and concern authorities charge some fees from the
owner of the property. The principle of trademark intellectual property act gives additional rights
to the person ans individual can fight for their rights (Dagne, 2014). Other person can use this
trademark if power of the property gives right and permission to use it. In the case of Delicious
Bakery Pte Ltd, company has registered its marks as trademark. So owner has right to sue Sweet
Bakery for using their cakes without their permission.
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Owner of intellectual property has right to take legal action against the person who has
used their property without taking consent of the owner. Patent act 1977 clearly states that if
someone uses other's property without permission which is called as breach of law then
individual has right to sue on the person (Trademark Infringement Defenses: Everything You
Need to Know, 2017). Law gives right of manufacturing, distributing the intellectual property to
owner. It means owner can authorize other person for using this property. Australian government
gives rights to the intellectual property's owner such as right to own, exclusive use, transfer, lend,
derive profit, denote, sell, disallow etc. By using these rights individual can protect own self
from misusing the particular product of the firm (Davison, Monotti and Wiseman, 2015). By
using these rights owner of Delicious Bakery Pte Ltd can claim against the wrong person to
misuse its trademark.
Aromatic cakes has become brand identity of Delicious Bakery Pte Ltd. After this
registration (Intellectual property crime and infringement, 2014). Trade mark intellectual
property act protect the identity of the brand in the market. Thus. Sweet bakery has no right to
use this mark and company has used it without the permission of the owner thus, it has to pay to
the owner of trademark for its mistake. Federal registration gives rights to the owner at the time
of pursuing infringers. If violation of exclusive rights take place without taking permission of the
business owner than owner may take civil legal proceedings against the wrong person. Delicious
Bakery Pte Ltd (Trademark Infringement Defenses: Everything You Need to Know, 2017). Is the
authorized owner for the Aromatic cakes thus, individual may take legal action for the
infringement of this trademark.
Use of intellectual property without having concern of owner of that property is called
infringement. Individual has right to claim for the damages which has been occurred to the brand
image. Person has also right to claim for the profit which has been made by Sweet bakery by
using this trademark in its organization (Jefferson and et.al, 2015). Court and federal government
will be in favour of the trademark owner and will force the wrong person to give monitory
benefits to the Delicious Bakery Pte Ltd. For using its trademark without its permission
(Torremans,2016).
Use of intellectual property without permission of the owner is considered as fraud.
Because it generates fake brand image in the mind of consumers (Dagne, 2014). Aromatic cakes
are not the unique style of Sweet Ltd thus, entity can not use this trademark without taking
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permission of owner of the Delicious Bakery Pte Ltd. Beaching of law gives punishment to the
wrong person of paying fine of £50,000 or get custodial sentence approx up to 10 years
(Kaminski, 2013).
b) Possible defence for Sweet Treats Pte Ltd
Trademark infringement defence is the system in which court gives chance to the wrong
person to defend own self (Aplin and Davis, 2013). In this situation defended has to prove that
they have not illegally used other's trademark. Doctorine of laches, estoppel, unclean hands and
fair use are four basic principles of defending the claim of infringement of trademark. Sweet
Bakery has used the design of cake of Delicious Bakery Pte Ltd so it is in mistake (Dagne,
2014). But company can negotiate with the owner of trademark. If it is proved that Sweet entity
has illegally used the trademark without taking permission of the owner than court can cease its
trading which will give huge loss to the wrong person (Bently and Sherman, 2014). Thus,
individual should do negotiation and needs to give some part of profit for its use design of cake.
Sweet Ltd can also prove in court that the design of Aromatic cake is little different from the
Delicious Bakery Pte Ltd. This will be in favour for the organization (Intellectual property crime
and infringement, 2014).
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Illustration 1: Defence of Sweet Bakery Ltd
Source: (Trademark Infringement Defenses: Everything You Need to Know,
2017)
With the help of this procedure Sweet bakery will be able to defend own self otherwise
its brand image will be affected and its profit will get decreased. It is the responsibility of the
company that to ensure that such design or mark is not registered by other party. And if are
using registered mark then they have to take prior permission from the owner (Trademark
Infringement Defenses: Everything You Need to Know, 2017).
CONCLUSION
From the above report it can be concluded that intellectual properties are essential part of
business unit. It gives rights to the owner and prohibited others to use such property without
taking permission of the owner. From the study it can be articulated that if such condition arise
then owner has rights to sue against the wrong person and claim for its recovery. Court give
support the trademark owner and take legal action against the wrong person. On other hand
wrong person has also option to negotiate with owner in order to resolve this issue.
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REFERENCES
Books and Journals
Aplin, T. & Davis, J., 2013. Intellectual property law: text, cases, and materials. Oxford
University Press.
Bently, L. & Sherman, B., (2014). Intellectual property law. Oxford University Press, USA.
Corones, S. G., (2014). Competition law in Australia. Thomson Reuters Australia, Limited.
Dagne, T. W. (2014). Intellectual property and traditional knowledge in the global economy:
Translating geographical indications for development. Routledge.
Davison, M., Monotti, A. & Wiseman, L., (2015). Australian intellectual property law.
Cambridge University Press.
Drahos, P., (2016). A philosophy of intellectual property. Routledge.
Drexl, J., (2014). Intellectual property and implementation of recent bilateral trade agreements in
the EU. In EU Bilateral Trade Agreements and Intellectual Property: For Better or
Worse? (pp. 265-291). Springer Berlin Heidelberg.
Drexl, J., Ruse-Khan, H. G. & Nadde-Phlix, S., 2014. EU Bilateral Trade Agreements and
Intellectual Property: For Better Or Worse?. Berlin: Springer.
Farran, S. & Paterson, D., (2013). South Pacific property law. Routledge.
Hart, T., Clark, S. & Fazzani, L., (2013). Intellectual property law. Palgrave Macmillan.
Jefferson, O. A. & et.al., (2015). The ownership question of plant gene and genome intellectual
properties. Nature biotechnology. 33(10). 1138-1143.
Kaminski, M. E., (2013). The capture of international intellectual property law through the US
trade regime. S. Cal. L. Rev. 87. pp.977.
Sell, S. K. (2013). Revenge of the “Nerds”: Collective action against intellectual property
maximalism in the global information age. International Studies Review. 15(1). 67-85.
Torremans, P., (2016). Holyoak and Torremans intellectual property law. Oxford University
Press.
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Vallar, G. & Bolognini, N., (2014). Unilateral spatial neglect. InThe Oxford handbook of
attention.
Online
Intellectual property crime and infringement, 2014. [Online] Available through:
<https://www.gov.uk/guidance/intellectual-property-crime-and-infringement>. [Accessed
on 24th October 2017].
Trademark Infringement Defenses: Everything You Need to Know, 2017. [Online] Available
through: <https://www.upcounsel.com/trademark-infringement-defenses>. [Accessed on
24th October 2017].
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