1 Table of Contains 1. Executive Summery 5 2. Introduction & Background 6 3. Point of view of Managing director and Marketing manager 7 4. Intellectual Property Act No 36 of 2003 7 5. Brand name infringement 9 6. Some argument support to managing director 9 7. Intellectual Property Act No 36 of 2003 Section 103(1) 12 8. Generic signs or indications 13 9. Some argument support to managing director 14 10. Recommendations & Conclusions 15 11. Annexure 16
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Legal concept the assignment covers the intellectual property
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Table of Contains
1. Executive Summery 5
2. Introduction & Background 6
3. Point of view of Managing director and Marketing manager 7
4. Intellectual Property Act No 36 of 2003 7
5. Brand name infringement 9
6. Some argument support to managing director 9
7. Intellectual Property Act No 36 of 2003 Section 103(1) 12
8. Generic signs or indications 13
9. Some argument support to managing director 14
10. Recommendations & Conclusions 15
11. Annexure 16
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1. Executive Summary
This assignment is based on Legal concept the assignment covers the Intellectual Property Act
36 of 2003, and other concept relates to the unfair competition and Admissibility of a mark.
We have selected the Spirits of Srilanka to apply the theory which would make the assignment
easier to understand and more users friendly.
To explain the two major topics we have divided the assignment in to two tasks. Which the
task one we talk about Trademark infringement, Unfair competition and Intellectual Property Act
36 of 2003 section no 160. And we have used some example to explain the scenario.
And In the task two we have talk about Intellectual Property Act No 36 of 2003 Section
103(1), Generic signs or indications and some example that is relevant to the scenario. Finally
we concluded our assignment by giving the recommendation.
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2. Introduction & Background
“SPIRITS OF SRILANKA” is a brewer and seller of locally manufactured beer in srilanka and
leader in field. Its general brand name is SOS. It sells a brand of beer under the name “Extra
Beer” with a distinctive mark and a gets up. This mark is registered under the INTELLECTUAL
PROPERTY ACT 36 OF 2003. Within the few years it reached its target Arrack Consumers
shifted to this “Extra Special beer” as it contained more than 8% of Alcohol as against standard
beers that had less than 4 % alcohol content.
“POWER OF SRILANKA” a recently established brewing company also. Introduced a bear
under the same “Extra Special Beer” with their own general Brand “POS”. In the registered
Trade mark their general brand “POS” Extra Special Beer, and a macho man showing thumbs up
sign was found in the label.
So SOS is contemplating filling a case against POS for the following:
- POS is infringing the SOS’s right as the registered trade mark owner.
- POS is Guilty of Unfair Competition Within the section 160 of IPA
In this scenario there is a conflict between Marketing Manager and Managing Director.
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1. Point of view of Managing director and Marketing manager
This assignment focus on two side of argument about this scenario that is
The managing director’s point of view: POS is infringing the SOS’S Rights as the
registered trade mark owner. And according to the Act of Competition Contrary to
Competition contrary to honest trade practices sprits cannot allow this to go on and
observe that their market penetrated by a new comer. SOS was the creator of this brand
and they need to have the exclusive rights to use it.
The marketing manager’s point of view :In accordance with the Intellectual Property
Act No 36 of 2003 sec no 103(1), it could be a tough legal battle as ‘Extra Special Beer”
could be classified as description of the goods and it be argued that no person can claims
exclusive rights to the use of such words.
2. Intellectual Property Act No 36 of 2003
Intellectual Property Act No 36 of 2003 is an n act to provide for the law relating to
intellectual property and for an efficient procedure for the registration, control and administration
there of: to amend customs Ordinance ( Chapter 235) and high court of the provinces (special)
provisions act no, 10 of 1996, and to provide act no : 10 of 1996. This is describes about
Intellectual property is an intangible property. Intangible property has a unique features, created
by human intellect, covers the ideas, inventions, literary creations, unique names, models, logos,
industrial processes, computer software programs, it has a monetary value, it is owned, sold or
licensed to another person to use.
In the act of Intellectual Property Act No: 36 2003, Section no 160 describes the unfair
competition. This term is particularly applied to the practice of endeavoring to substitute one’s
own goods or products in the market for those of another for the purpose of deceiving the public.
This deception is commonly accomplished by imitating or counterfeiting the name title, size,
color scheme, patterns, shape or distinctive peculiarities of the article, or by imitating the shape
color, label, wrapper or general appearance of the package in such as way as to mislead the
general public or deceive an unwary purchaser. Section no 160 Describes more subject matter
about the unfair competition following points are describes in the section no 160:
Any act or practice carried out or engaged in the course of industrial or commercial
activities that are information contrary to honest practices shall constitute an act of unfair.
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The provisions of this section shall apply independently of, and in addition to, other
provisions of the Act protecting inventions, industrial designs, marks, trade names,
literary, scientific and artistic works and other intellectual property.
Any act or practice carried out or engaged in, in the course of industrial or commercial
activities, that causes, or is likely to cause, confusion with respect to another's enterprise
or its activities, in particular, the products or services offered by such enterprise, shall
constitute an act of unfair competition.
Confusion may, in particular, be caused with respect to-
(a) a mark, whether registered or not;
(b) a trade name ;
(c) a business identifier other than a mark or trade name ;
(d) the appearance of a product;
(e) the presentation of products or services ;
(f) Celebrity or a well known fictional character.
Any act or practice carried out or engaged in, in the course of industrial or commercial
activities, those damages, or is likely to damage, the goodwill or reputation of another's
enterprise shall constitute an act of unfair competition, whether or not such act or practice
actually causes confusion.
Any act or practice carried out or engaged in, in the course of any industrial or
commercial activity, that misleads, or is likely to mislead, the public with respect to an
enterprise or its activities, in particular, the products or services offered by such
enterprise, shall constitute an act of unfair competition.
Reference: http://www.customs.gov.lk
3. . Brand name infringement
Some specific elements measured in the Trademark Infringement are:
1. Strength of the mark
2. Proximity of the goods
3. Similarity of the marks
4. Evidence of actual confusion
5. Marketing channels used
6. Type of goods and the degree of care likely to be exercised by the purchaser