Copyright: Business LawNative Jewelry, Inc. has a copyright of product that was made by some jewelry artists since 5 years ago. If ABC Jewelry that is retail store bought same product as Native Jewelry, Inc. that made by same artists, but different color and the product was made 6 years ago, can Native Jewelry, Inc. sue the ABC Jewelry?Yes, Native Jewelry has a right to sue ABC Jewelry based on legal provisions and principles governing copyright laws in addition to creation of patent designs.Under the regulations governing the application of new product designs there are stringent mechanisms set to ensure that fresh applicants do not infringe on the existing intellectual property rights of similar products. "New applications are initially processed by the Application Division which decides if an application is complete and meets all formal requirements. Any drawings accompanying the application are forwarded to the official draftsman, which checks to see of drawings comply with the formal requirements. Any assignment of the application is forwarded to the Assignment Division, which records the assignment in its computer and microfilm records and returns it to the applicant with a notification of the reel and frame numbers in the microfilm records" (Halpern, Nard, & Port, 2007). This therefore implies that any new applicant needs to submit drawing of the designs they have. Supposing a new entrant into the market, in this case ABC jewelry decides to produce a new prototype then it must be able to prove that similarities are not occurring. In this case, the designs produced are elementally similar in context apart from the aspect of color distinction which relatively makes it unsustainable as an intellectual property. The elements pushing for the classification of a new product should elementally be based upon the provision of an aspect of originality and authenticity.In as much as they property of copyright is usually attributed to the product itself as opposed to the initial inventor, in this case, ABC appears to have derived a previous model belonging to the same inventor. Since, copyright was initially granted to the same product via Native Jewelry, it would make less sense to grant the same to ABC jewelry. Formal procedures essentially require that inventors of products need to follow the required procedures. Alternatively, ABC can choose to sell similar product through secondary application options due to the event that the designers are elementally similar. This will take the form of a continuation application that is essentially applicable it was a similar entity. "A continuation application is a generic term for three types of patent applications that are entitled to the filing date of an earlier (patent) application. The three types of continuing application are continuation application, continuation-in-part applications, and divisional application. These requirements for claiming continuing status are that the application be filed while parent application is still pending ('copendency'), at least one inventor must be common to the two applications, and the text of the second application must refer back to the first" (Halpern, Nard, & Port, 2007). However, in this case ABC appears to have gone against available alternatives, in the process leading to the introduction of unfair processes into the system with regard to legal concepts and legitimate business practices.The application of trademarks is ordinarily based upon the provision of a wide list of requirements which may include logo definitions, sound description, color descriptions, and other feasible design aspects. These elements provide the definitive aspects that are meant to be essentially used during formalization and description of product entities. The application of these symbols is subject to varying aspects of concern as seen in most cases. "Manufacturers and merchants use trademarks for the sole purpose of distinguishing their products from those of others in the marketplace, not for any functional purpose. A trademark usually consists of a word, phrase. Logo, or other graphic symbol...It can also consist of distinctive shape, letters, numbers, package design, sound, smell, color, or other aspects of a product that tend to promote it" (Stim, 2009). This affirms the fact that ABC's production of a similar product entity that falls within the jurisdictions of product fundamentals going by its successor seems to go against the required legal procedures. The mere application of a different color does not suit the description of ABC's product as being legitimate and fair. ABC therefore seems to have potentially transgressed the legal definitions governing the application of copyright concepts.
Furthermore, the use of color as a distinguishing factor seems to be a potentially misguiding and obvious factor. This interpretation is also achievable from a layman point of view. This is because if the two products were subject to a public opinion review to get the notion of the surrounding then there is an increasing possibility that similar interpretations would be made using layman interpretation. The obviousness of the distinction therefore implies that ABC's jewelry produced by the same artist fails to comply by the required regulations. "A patent applicant is entitled to a patent only if his invention is new, adequately disclosed useful, nonobvious, and fits within statutorily defined subject matter. These patentability requirements secure a quid pro quo society" (Halpern, Nard, & Port, 2007). Based on this jurisdiction one would note that ABC's practice carries with it an element of fraud as it potentially appears to be a non legitimate business practice. "The nonobvious requirement builds upon the novelty requirement and raises the patentability hurdle by denying patent protection to inventions that are obvious to a person of ordinary skill of art. Thus, even is an invention is novel, it may nevertheless be unpatentable" (Halpern, Nard, & Port, 2007). Any product produced that is similar to the other based on its initial dimensions even if there is color difference; this may not be a mere matter of coincidence.
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Moreover, even of the patent in view of ABC is a prototype that was produced initially, the ownership and design still les with the original designer. Taking into account the element of time one would be quick to note that there are indeed contextual differences emerging. However, these do not fit the criterion for defending a new product design since timing is not usually an important factor especially in certain product variables. There mere fact that ABC decided to produce a similar product exactly one year later does not warrant their significant participation in the overall framework of design.ABC's participation through producing a different color variant introduces with it an element of unfair competition. The introduction of new product elementally needs to be based upon the fundamentals of health business environment, which objectively includes competition as a guiding factor. "Unfair competition is the legal umbrella that governs any commercial activity that tends to confuse, mislead, or deceive the public about the sale of products or services. Such activities as trademark infringement, simulation of trade dress and packaging, palming off, false advertising, false designation or origin, and theft of trade secrets all constitute unfair competition" (Stim, 2009). Considering the fact that ABC's jewelry appears to go against the principles of 'false designation or origin' further supports the fact that there are anomalies in the subsequent participation of ABC in the same business environment. Ordinarily patents need to be disclosed to the public domain in order to subject the design to better development and improvement strategies. Only when the improvements made are desirable will the aspect of product improvement apply. "The disclosure requirements ensure that the patentee discloses to the public how to make and use patented invention so that others, namely persons of ordinary skill in the art, can improve upon or design around the patentee's claimed invention" (Halpern, Nard, & Port, 2007). In this case, ABC fails to even make an improvement on its previous protocol taking into account the similarities in design. By virtue of this factor, this potentially disqualifies the legitimacy of ABC' product prototype in view of the recurring situation. "Because it would be nonsensical to grant a patent on an invention that already exists, the novelty requirement ensures that the inventor has contributed something new to society, something nit previously known or used" (Halpern, Nard, & Port, 2007). The actions of ABC are beyond any reasonable doubt applicable in the current business setting as it goes against the very aspects that serve to preserve business objectives to a great extent going by business ideals.Native Jewelry therefore has a significant case to argue judging from the fact that they were the first to apply for copyright protection for their designs. The facts prove beyond any reasonable doubt that in the current circumstances, ABC's entrant into the market with a similar introduced with it an element of unfair competition practice, infringes on intellectual property rights, and destroys the element of unique creation through presentation of an improved process or product. Going by the existing legal framework governing copyright concerns Native Jewelry stand a good chance of successfully presenting their accusations against ABC jewelry.