LW3380 Intellectual Property

Title: LW3380 Intellectual Property

Module Code and Title: LW3380 Intellectual Property Midsummer Exams 2021/22 Summative Assessment Department: Leicester Law School Word Limit: 1000 words per question Number of Questions: 6 - 3 questions in PART (A) and 3 questions in PART (B) Number of Pages: 6 Submission Deadline: Wednesday 11th May, 10:30am Instructions to Candidates: Answer TWO questions - ONE question from PART (A) AND ONE question from PART (B). Each answer should be no more than 1000 words, including references. If your question has more than one part, you should split the maximum word count appropriately. Penalties will apply for exceeding the word limit. Please use Microsoft Word and NOT Turnitin to check your word count. You are not required to use OSCOLA referencing or provide a bibliography. You should treat this assessment as a traditional exam. Your overall mark will be a calculated average of the required number of answers. Each question will be marked out of 100. This is an open book exam, and you are permitted to access appropriate resources to support your answers. Although you have 48 hours to submit this assessment, you are not expected to spend more than one to two hours per question. If you have alternative exam arrangements in place by AccessAbility, you should follow these and submit your work within the designated time frame. You will need to submit your work as a Word Document via Turnitin. There will not be a late submission period. Students who do not submit in time will have the assessment automatically deferred to the next assessment period. For this reason, you are encouraged to submit your assessment in good time in case of technical difficulties. By submitting this assessment, I confirm adherence to the Honour Code. LEICESTER LAW SCHOOL PART A ANSWER ONE QUESTION FROM PART A 1. Silki is an award-winning painter whose work explores sensitive and controversial themes. Her new exhibition comprises a series of photographic images depicting cruel acts being committed against animals. It is being held at Provocative Art (PA), a leading art gallery in the centre of London. The exhibition has attracted much interest from animal rights activists, and a series of protests have been held outside PA. At one such impromptu gathering, Kyle, an influential activist, delivers a powerful 30-minute speech regarding the responsibility of the state and corporations to withhold financial support for certain kinds of ‘immoral’ art. A social commentator, Lenora, is in the crowd when the speech is given. Lacking a recording device, she makes a near-perfect record of his speech using shorthand. Later that night Lenora posts her record of Kyle’s speech on her blog with a hyperlink to the webpage of PA, which features a copy of Silki’s most controversial photograph. Mihail, a lover of modern art, reads Lenora’s blog and decides to include Lenora’s record of Kyle’s speech in an anthology he is compiling of modern art controversies. On his personal webpage he publishes a notice about his forthcoming book, which includes a hyperlink to Lenora’s blog entry. Advise the parties of their rights and liabilities under the Copyright, Designs and Patents Act 1988. 2. John has owned a pizza delivery service in Leicester for over five years called “PIZZAS2YOU”. Keen to differentiate his business from a local rival, ME2UPIZZAS, John has created several features which, he believes, gives his business an edge over other pizza delivery firms in Leicester. His pizzas are not round but star-shaped and are supplied in a box which is covered with orange, green and white stripes. This colour scheme is repeated on all his delivery vans. His pizzas are also made with a special herb topping which gives a distinctive smell when the lid of the box is opened. Finally, his delivery vans have each been fitted with a special horn which plays the opening few notes of Rossini’s “William Tell” Overture so that the driver can alert customers that a delivery is about to be made. John has contacted you seeking advice on obtaining registered trade mark protection. Please identify any relevant marks and advise John of his chances of success in registering them under the Trade Marks Act 1994. Your answer should be supported by legislation, case law and appropriate legal reasoning LEICESTER LAW SCHOOL 3. The list of ‘non-inventions‘ in section 1(2) of the Patents Act 1977, and ‘exceptions to patentability’ in sections 1(3), 4A, and Schedule A2 seek to prevent the patenting of unsuitable subject matter. Critically evaluate the scope and effectiveness of one of the ‘non-invention’ exclusions listed below in section a) AND one of the ‘exceptions to patentability’ in section b): a) Non-Inventions: • Patents Act 1977, s1(2)(a) - ‘discoveries’ OR • Patents Act 1977, s1(2)(c) - ‘programs for computer’ b) Exceptions to patentability: • Patents Act 1977, s1(3) - inventions ‘contrary to public policy or morality’ OR • Patents Act 1977, s4A – ‘methods of treatment or diagnosis’ LEICESTER LAW SCHOOL PART B ANSWER ONE QUESTION FROM PART B 4. RotaMota Ltd is a UK based company that specialises in the design and manufacture of vehicle wheel rims. On 14 March 2021, RotaMota applied to the UK Intellectual Property Office (IPO) to register the design of a car wheel rim (see figure 1). A UK Registered Design Right was granted on 20 September 2021. Pininfarina, creators of iconic car designs for vehicle manufacturers such as Ferrari, Maserati and Alfa Romeo, have filed an opposition with the UK IPO challenging the validity of RotaMota’s design registration. They argue that RotaMota’s wheel design does not satisfy the requirements of ‘novelty’ and ‘individual character’ set out in section 1B of the Registered Designs Act 1949 in light of the following activities which they deem to constitute relevant ‘prior art’: a) On 7 March 2019, Pininfarina premiered their first all-electric supercar, the Battista, at the Geneva Motor Show. An image of the vehicle’s wheel rim is shown in figure 2. Figure 1 – RotaMota’s registered design LEICESTER LAW SCHOOL b) On 3 November 2020, images of the RotaMota wheel rim were posted on RotaMota’s social media pages on Facebook and Instagram by a RotaMota employee. c) The social media posts of November 2020 mention the wheel design being exhibited by RotaMota at a private motor show held in Munich in September 2019. Only a small number of select ‘high-worth’ car enthusiasts were invited to the exhibition to see the latest developments in vehicle design and technology. RotaMota now seek your advice regarding the likelihood of Pininfarina being successful in invalidating their design registration. Please provide a detailed response supported by legislation, case law and appropriate legal reasoning. 5. Under the law of Breach of confidence, the test used to establish whether or not an obligation of confidence arises is often referred to as the ‘notice of confidentiality’ test. Explain what this test requires and how it can give rise to liability in a wide range of situations. 6. Louisa Smit is a talented Dutch silversmith and designer. She is also a keen motor racing fan. In 2017, she started to make her own jewellery reproducing famous race tracks from around the world (the right to reproduce the track designs has been acquired by Louisa). An image of her ‘Silverstone Pendant’ is shown in Figure One below. At first she only sold her jewellery at motor racing events in mainland Europe, and in late 2017 she launched a website selling her jewellery at www.louisa-smit.com. Recognising the potential of social media, in February 2018, she set up a Twitter account which she gave the handle @LouisaJewellery. In 2018, her jewellery began to attract the attention of the UK press. In July 2018, her Silverstone pendant was featured in a special ‘Formula One’ edition of Marie Claire UK magazine. Several TV presenters in the UK also began wearing her jewellery. In January 2019, Louisa decided to set up a new website targeting the British market with the domain name www.louisasmit.co.uk. As a result, her UK turnover increased from 5 sales totalling £500 in 2018 to 1000 sales totalling £100,000 in 2019. Figure 2 – Pininfarina’s wheel rim on the Battista. LEICESTER LAW SCHOOL Laura Hamilton is also a talented jewellery designer based in the UK and in early 2017 she started making motor racing themed necklaces for close friends and family. She decided to turn this into a business and to call it “Louisa Jewellery Design”. An image of her ‘F1 Car Pendant’ is shown in Figure Two below. In February 2019, she launched her website under the domain names www.louisajewellerydesign.com and www.louisajewellerydesign.co.uk. She also set up a Twitter account with the handle @Louisanecklace. Louisa Smit became aware of Laura Hamilton’s activities in late 2020 when she received a telephone call from a customer who thought they were contacting Laura Hamilton’s jewellery business. Louisa Smit now seeks you advice on bringing a successful action in Passing Off against Laura Hamilton.