The law on intellectual property - the collective name for patents, designs, copyright and trademarks - is becoming increasingly important in everyday business, especially in the computer sector. Ireland's rapidly expanding computer software industry depends heavily on both patent and copyright law for protection.
But copyright law has failed to keep pace with commercial developments. Based on the Copyright Act, 1963, it is rooted in the technology of the 1940s and 1950s and predates the computer and the Internet. The European Communities (Legal Protection of Computer Programmes) Regulations, 1993, extended the legislation to provide protection for computer programmes. These regulations state that every original computer programme benefits from copyright as if it were a literary work within the meaning of the 1963 Act.
Apart from this, computer products are dependent on qualifying under the existing definitions in the 1963 Act, in order to benefit from copyright protection. This weakness in Irish Copyright Law is particularly dangerous because the World Trade Organisation is constantly monitoring domestic intellectual property legislation and encourages companies not to locate in countries where protection is weak.
A new copyright bill is currently being drafted and it is hoped that this will extend copyright protection to deal with the concerns of the computer industry. The draft bill will probably not be available until early 1998. In the interim, the legal protection for the products of our fastest growing and most valuable industry, remains perilously weak.
A trademark may take the form of a word(s), a logo, a colour, a sound, a smell - anything that can be represented graphically. The increasing consumer awareness of brands highlights the importance of protecting trademarks and ensuring that no competing company is benefiting from the time and money spent on advertising.
Trademarks may be registered or unregistered. Rights accrue in relation to an unregistered trademark where it can be proved that consumers associate that mark with a particular proprietor and that goodwill attaches to the mark on that basis. In the case of registered trade marks, registration confers automatic rights on the proprietor, allowing him to proceed against infringers without the necessity of proving goodwill.
This results in considerable savings, both in terms of time and money, where it does prove necessary to bring infringement proceedings. To obtain the widest possible protection for a trademark, it should be registered either on the Irish Trademarks Register or on the Community Trademarks Register.
Registration as an Irish Trademark confers exclusive rights on the proprietor to use the trademark in Ireland while registration as a Community Trademark grants exclusive rights to use the mark throughout the European Union. Companies operating on the Internet should also consider registering their domain name as a trademark. The difficulty of protecting rights in relation to unregistered trademarks was highlighted in a recent case before the Irish courts: In R Griggs Group Limited and Others versus Dunnes Stores (Ireland) Company an interlocutory injunction was sought to restrain Dunnes Stores from passing off a range of boots sold by them as being the boots of the plaintiffs (namely Dr. Marten boots). The court was satisfied that the plaintiffs had an arguable case of passing off.
However, the court must also be satisfied that the balance of convenience lies in favour of granting an injunction. The court held that if the injunction were refused, loss of sales to the plaintiff would be minimal but if granted, loss of sales to the defendant would be considerable. The injunction was refused. Fiona Doyle is a Solicitor in the Intellectual Property Department of Eugene F. Collins, Solicitors.
