Trademark Laws (Research Paper Sample)

Business & Commercial Law
Group Project Trademark Law – Dangerous Counterfeit Goods
This ‘Research Project’ requires each GROUP of students to look into the protection of ‘Trademarks’ in the UAE and the infringement of UAE Trademark Law in respect of “DANGEROUS COUNTERFEIT GOODS” (this includes the different ways this LAW can be breached by vendors who sell “Dangerous Fakes” to Abu Dhabi or Dubai residents and tourists). Go shopping in Abu Dhabi or Dubai to discover ‘Real Life’ examples of “Infringement of Trademark Law”.
Trademark Laws
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Date
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Contents
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Difference between Passing off and Counterfeit Products  PAGEREF _Toc389569253 \h
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“Passing Off” v. selling “Counterfeit Goods”  PAGEREF _Toc389569254 \h
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Survey  PAGEREF _Toc389569255 \h
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Findings  PAGEREF _Toc389569256 \h
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Analysis of the consumer survey  PAGEREF _Toc389569257 \h
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Enforcing the law in UAE  PAGEREF _Toc389569258 \h
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Penalties imposed on the infringement  PAGEREF _Toc389569260 \h
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Breaches and effects in tort on consumers, TM holders, UAE  PAGEREF _Toc389569264 \h
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Findings on effectiveness and future deterrence  PAGEREF _Toc389569269 \h
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Recommendations to reduce violations in the UAE  PAGEREF _Toc389569272 \h
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References  PAGEREF _Toc389569275 \h
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Difference between Passing off and Counterfeit Products
“Passing Off” v. selling “Counterfeit Goods”
Passing off is the process of making false representation for the purposes of inducing the customers that the goods sold are from another company. The process is usually a calculated move and it is meant to injure the business or products of the other companies. It is also important to note that the trader gains financially from the process while the customer and the other company do not. The process of passing off is illegal in the United Arab Emirates and it amounts to trademark infringement. Counterfeit on the other hand involves the imitation of the original products for the purposes of defrauding the customers. The customers in most cases may not be able to differentiate between the original product and the counterfeit and hence the crime. The amounts to infringement of the trademark in the United Arab Emirates under the UAE Federal Trademark Law as amended by Federal Law No.8 of 2002. Compared to the original products, the Counterfeit products do not last as compared to the original products.


Survey
A market survey was carried out in the supermarkets, stores, shops and pharmacies. This was for the purposes of determining the examples of vendors selling dangerous counterfeit in breach of the trademark laws the in United Arab Emirates. The consumer survey also involved several questions to the vendors and consumers. At the international level, the data was searched online. The following were the survey questions that were used.
Are you able to differentiate the original products from the counterfeits?
What are the effects of counterfeit products on the business?
What are the consequences of consuming the counterfeit products?
What factors contribute to the purchase of the counterfeit products?
Are you aware of the laws regarding the infringement of trademarks?
Do you think the government is doing enough to counter the infringement of the trademarks?
Where do counterfeit products come from?
Who are the stakeholders involved in the fight against the counterfeits?
What are the common counterfeit products in the market?
What measures would you take incase of harm from the counterfeits?
Findings
At the international level, China is one of the countries with the highest levels of counterfeit products. This is because thousands of counterfeits are produced and sold in the country each year. In 2013, United Arab Emirates about 2,600 counterfeit products were impounded. This involved pharmaceutical products, perfumes and clothes. In the United Arab Emirates, the custom duty officials are supposed to seize any counterfeit products in order to prevent its circulation in the market. This is usually with the export goods although a lot of difficulties are usually involved in the process. The dangerous counterfeit products have negative impacts on the original companies. This is because they deprive the original companies the profits that they are supposed to make genuinely. In most cases, the counterfeit products are usually cheap and hence attracting the customers to purchase them without their knowledge. It is also important to note that the counterfeit products may end up causing harm or injuries to the customers. This is common in terms of the food products or other consumable products. The brand image of the original companies may end up being spoilt as a result of the harm caused to the customers by the counterfeit products. On the other hand, the customers do not receive any compensation as a result of the harm that is caused to them by the counterfeit products. It is due to the harmful effects that the counterfeit products are considered illegal in the United Arab Emirates.
In the United Arab Emirates, several counterfeit goods exist in the market The examples of counterfeit goods in the market include perfumes, Nike T-shirts, Rolex watches, Marks and Spenser suits, Car batteries, Dry cells, Sony electronic goods, Samsung mobile phones, cigarettes and soft drinks. Most of the counterfeits are manufactured in the country while others are manufactured outside the country. In the international market, the counterfeit products also exist and this includes Sony DVD player, Nokia Mobile phones, Cadbury chocolates and Soft drinks. Most of the counterfeit products circulating in the world are from China. It is difficult to control the counterfeit products in the world due to its complicated nature and the movement of goods from different parts of the world.
Analysis of the consumer survey
The consumer survey indicates that about 50% of the consumers in the United Arab Emirates ends up purchasing the counterfeit products with the belief that it is original. The trademark infringement hurts the business as well as the customers who end up with low quality goods. Most of the clothes and perfumes that are found in the market in United Arab Emirates are counterfeits and they are much cheaper as compared to the original products. The low prices usually influence the purchase decision of the customers. The vendors are also responsible for the distribution of the counterfeit products in the market. Most of the customers and vendors are not aware of the laws reading the counterfeit products.
Enforcing the law in UAE
According to article 46 of the Federal Law No. 37 of 1992 on Trademarks amended by Law No. 19 of 2000 and Law No. 8 of 2002, the minister of justice in consultation with the minister of Economy and Commerce are responsible for the implementation of the provision regarding the trademark issues. This also includes the enforcement of the provision s of the laws while working in close partnership with the police. The police are also responsible for the responsible for the implementation of the laws with regards to the infringement of the trademark.
Penalties imposed on the infringement
Different penalties are usually imposed on the offenders in accordance to the law. Several penalties have been put in place for the purposes of dealing with those who are found infringing the trademarks. According to 37, imprisonment and affine not exceeding AED 5000 may be imposed on those who infringe the trademark laws. This includes anyone who is found counterfeit a trademark which is legally registered. The imitation of the trademark for the purposes of misleading the customers also amounts to the infringement of the trademark and it is also a crime. Those who are found illegally using a registered trademark are also liable for the imprisonment term and the fines. The Abu Dhabi Federal Court ordered a shopkeeper to pay a fine of Dh 30000 in compensation after being found guilty of infringing the trademark of LOUIS VUITTON which is a French designer company. The raid by the police led to the discovery of 109 counterfeit bags of Louis Vuitton. The shopkeeper was also fined Dh 5000 for the trademark infringement.
The mala fide putting of a trademark of another party on their products also amounts to the infringement of the trademark and it attracts the same penalties. The process of selling or being in possession of a counterfeit is also a crime in the United Arab Emirates under section 37 and this is also punishable by a jail term or a fine not exceeding AED 5000. The process of rendering services under a forged trademark also amount to a crime in the United Arab Emirates and those who are found committing the crimes are also liable for punishment in accordance to the penalties outlined in Article 37. In the Federal Court of Cassation judgment No. 682/2009, a US company filed for the cancellation of the trademark of a local UAE manufacturing company whose trademark was similar to the company. The US company had registered its trademark in 1987 while the manufacturing company in UAE had registered in 2000. However, the US company had not registered its trademark in UAE. Both companies dealt with adhesive tapes but for different applications. ...