The tech giants Apple and Samsung have been locking horns for a while now as their sales soar high at the advent of the smartphone era. The smart-phone pioneers are a tough competetion but the reason why they are attracting media attention is the lawsuit by Apple on Samsung regarding patent infringements. Samsung had allegedly copied certain aspects of the operating system and various minor details in the software and following the course of the lawsuit, Samsung lost the case and had to face heavy losses. This phenomenon caused massive losses to Samsung and their reputation which was purged in the process. (AndroidChief, 2012)
The legal bash between Nokia and HTC is also a well-known one. There were two instances of Nokia beating HTC in legal battles and banning the sales of HTC One Mini on British soil. The legal issues were due to patent infringement regarding the modular structure for the transmitter and the mobile station. HTC appealed that there were other companies in the market doing the same thing but the appeal did not stick and HTC lost the case. This also forced HTC to change the radios and microphones in the flagship smart-phone of HTC. (Scott, 2013)
Late Sheikh Zayed bin Sultan Al Nahyan was behind the issuing of the federal law no. 37 on the subject of trademarks in the year of 1992. This was a meticulous step which was made because he identified the significance and benefits of trademark protection in an economy which was getting prosperous day by day. This law was further amended by law no. 19 and 8 for protection regarding trademarks which were passed in 2000 and 2002 respectively. This law was passed for the intention of protecting the interests of organizations and customers in the country. The law included sections describing the meaning of a trademark, procedures and protocols about the registration and cancellation of trademarks, signs which cannot be registered in the form of a trademark. The laws also included sections regarding transfer of ownership and trademarks retaining to mortgage rules, trademark licensing, array of penalties for the infringements of trademarks and rules regarding general terms of trademarks.
According to the article no. 2 of the trademark law,
“A trademark is any distinguished form of names, words, signatures, letters, figures, graphics, logos, titles, hallmarks, seals, pictures, patterns, announcements, packs or any other marks or group of marks if they were used or intended to be used either to distinguish goods, products or services from whatever sources or to indicate that certain services, goods or products belong to the owner of the trademark because of their provision, manufacturing, selection or trading the voice accompanying a trademark is considered a part of it.”
(Government of Abu Dhabi, 2014)
It UAE law effective in preventing breach trademark law? Is the enforcement of the effective?
The government of UAE applied tremendous amount of endeavor in passing and preserving trademark laws which are strong at the core. The swiftness and the manner of upholding and maintaining the trademark laws can be compared to the ones in the western jurisdictions. Trademark infringement is taken as a serious offence in the UAE. The impact of trademark infringement also applies on the organization at large. The legislation dictates clear protocols and actions against firms or individuals who are claimed to have infringed a patent or a trademark. Due to this, it is highly recommendable for organizations to prepare an operating plan. There is also a provision regarding criminal remedies in case of trademark infringements under the trademark law. (www.trademarks.ae, 2014)
Passing off is a process aligned with a cause of action. It is considered as application of intellectual property which is applied in case of unauthorized use of a symbol or mark for business purposes. This is evoked when the opposite party is found to be using an identical logo or mark. The activity of passing off is considered as a law which is commonplace in comparison to the United States Trademark Law due to the level of enforcement applied. The trademark law followed in the United States is a statutory law which includes provision for trademark infringements. The application of the law and the events that requires the law to be inferred and evoked is due to overlapping situations which contain a conflict of facts. This law does not contain references of monopoly rights to specific names.
The law of passing off was created also for the purpose of avoiding and clearing misinterpretations which are related to public trade. There have been many cases of copyright infringements in the course of history related to many various fields. There are also cases reported in the music industry, literature plagiarisms, film industries, food chains, clothing industries which also extends to food and beverage and branding of various industries. The concept of trademark laws has been going on since the 1930’s. (Groves, 2011)
The concept of extended passing off dictates that if a misinterpretation regarding the quality of a product inflicts damage upon the reputation of another company, it becomes the case of extended passing off. The case of Erven Warnick and Townsend & Sons Ltd. Can be considered as an example of extended passing off which depicted that one company replicated the drinks produced by another company and sold it under an identical name. (Jones, 2001)
When a company sells the product of other company as their own, it is considered as an act of reverse passing off. The rules which are referred in condition of a reverse passing off are the same which are using for the normal passing off situations. (Jones, 2001)
In the advent of big brands and bigger corporations, the industry of producing counterfeit goods is on a rise. This can be observed in trends of fake handbags, rip-off clothes and mock medicines. These types of trends cause harm to the economy, companies or people in some way or the other. The reason why this industry has been growing is that it observes high profits and low cost. Since the advent of organized commerce the trend of lesser goods being passed off as original ones has been observed. Government authorities and company officials have been struggling for years to end the menace of counterfeit goods being marketed all over the world. (BASCAP, 2009)Putting the halt to this kind of activities seems difficult due to the aggressive marketing, sales and methods of the fraudulent sellers. This has been observing a rise due to the fact that individuals with low levels of salaries can afford counterfeit goods and the biggest reason seems to be that issues with higher concern are provided much more attention than this issue and neglect can be observed. The best way to approach this is to inform the consumers regarding the adverse effects of supporting this kind of behavior.
The several cases and examples of infringement in products cause a vertain level of confusion among the consumers. The fact which is neglected in general is that these activities cause losses worth billions of dollars to organizations. It is unlawful behavior because the fraudulent distributors are earning on the basis of the credibility and the reputation of the corporations which are actually famous and successful. It results in loss of revenue to the companies and in case food, beverage and medicinal products: these counterfeit goods can cause harm to the uninformed individual.
The industry of producing fake and replicated goods constitutes among the world’s largest industries which operate from the underground. These industries are observing success at breakneck speeds. The extent of impact caused on the industries is billions of dollars to the industries which have been established and running since years and are behind the success of the original product. The major role in this movement is played by the customers. (Eisend & Schuchert-Guler, 2006)
The point of view regarding counterfeit goods differs from country to country; according to United States, It is rip-off clothes and mock handbags. But the fact which is being ignored is that the largest share of impact comes upon the American industries. How this trend impacts electronic industries is goods which are identical to the original brands and don the same name but are actually of poor quality and available at a cheap price. Not only does this impact the companies at an economical aspect but also purges the reputation the brand has earned among the people. This is a risky situation also due to the fact that faulty batteries and hastily crafter transformers can be explosive and have a tendency to cause harm to individuals at a massive level. If the impact of radiation emitting from certain devices is considered, the impact of this movement can be doubled in effect. Economically, counterfeit goods harm the electronic industry by causing losses worth 100 billion USD every year. The impact of this crime grew so widespread that at one point of time, the amount of counterfeit goods being circulated in the market was accounted at 5% to 20%. (Levin, 2009)
This entry of fraudulent distributors in any country’s distribution system contain the potential to harm the well-being of individuals as well. This wave of crime is also responsible for distributing fake food products, beverages and mock medicines which can harm a lot of individuals through unimaginable circumstances. The impact to industries is that the cost increases and there is a maximization in inventory. (Sangani, 2010)
Not only does the crime wave of counterfeit goods impact the revenues of the corporations, but it is also a big blow to the employment of the people in general. This impact is generated in many countries and the impact doesn’t cause unemployment in a singular company or sector but it hits hard on the employment rate of the country. This just doesn’t stop of the impact of companies terminating their employees but due to a gradual downfall, there is negligible rate of intake observed in many industry sectors due to this. The level of impact has reached an observable level and almost 2.5 million jobs have been lost due to the advent of distribution of fake goods. (Eisend & Schuchert-Guler, 2006)This figure of 750,000 is just related to the impact in United States and it can be assured that the worldwide impact on the economies of many countries is much more. It is not true that this impact is just observed in developed countries which display major intake of big brands but also in developing and under-developed economies which have factories and facilities working for the big brands. It impacts the employment level of these developing and under developed economies by stalling fresh employment and the stagnant workforce is left to engage either in starvation, low level labor or a life of crime. (Sangani, 2010)
The contribution and impact of the counterfeit goods is not limited to the black markets and back-alley shops and dealers but also the world of internet. EBay which can be easily recognized the world’s biggest online trading community is being swarmed with fake products and counterfeit goods. (Levin, 2009) The traffic on EBay has increased to 81 million people per month. It has been observed that online auction sites harm the legitimate dealers and distributors of the original products. There is a high level of uncertainty and many people get duped on the internet where it is difficult to test the authenticity of a product. (BASCAP, 2009)
It can be said in conclusion that the industry of counterfeit goods has a sizable impact on the lives of people and the economies across the world. The impact begins as an economic impact on the companies, and finally it extends to affecting the whole industry sector, the employment of the respective sectors and the harmful level of extension effect is the impact on the health and well-being of people. It is the role of the regulating authorities to observe and control the crime wave such as this one and alleviate the impact of this calamity on the welfare of the people. It is also to be observed that people should understand their role in this process and refrain from supporting such activities which cause harm at this level.
AndroidChief. (2012, 8 25). Huge Samsung defeat – what caused Apple’s $1 billion win in U.S. patent case. Retrieved from myandroidchief.com: http://myandroidchief.com/huge-samsung-defeat-what-caused-apples-1-billion-win-in-u-s-patent-case-full-verdict/
BASCAP. (2009). The impact of counterfeiting on government and consumers. Frontier Economics, 1-55.
Eisend, M., & Schuchert-Guler, P. (2006). Exploring counterfeit purchases: A review and preview. Academy of Marketing Science Review, 1-22.
Government of Abu Dhabi. (2014). UAE Trademark Law. Retrieved from www.abudhabi.ae: https://www.abudhabi.ae/portal/public/en/business/business_startup_and_operationalisation/startup_basics/gen_info71?docName=ADEGP_DF_14912_EN&_afrLoop=5186038613095469&_adf.ctrl-state=lda1rkkep_53
Groves, P. (2011). A Dictionary of Intellectual Property Law. Edward Elgar Publications.
Jones, R. A. (2001). TRADE MARKS ACT 1994. London.
Levin, E. K. (2009). A safe harbor for trademark: Reevaluating secondary trademark liability after Tiffany v. eBay. Berkeley Technology Law Journal, 491-527.
Sangani, K. (2010). Buyer beware. Engineering & Technology Journal, 28-31.
Scott, J. (2013, 12 3). Nokia wins patent battle against HTC in UK court. Retrieved from www.computerweekly.com: http://www.computerweekly.com/news/2240210322/Nokia-wins-patent-battle-against-HTC-in-UK-court
www.trademarks.ae. (2014). Dubai Trademark Register Dubai Trade Mark Office . Retrieved from www.trademarks.ae: http://www.trademarks.ae/?gclid=CKfIpMnptcICFYHLtAod6i0A_w