Legal Issues in Franchising and Trademarks Term Paper - 4950 Words

Legal Issues in Franchising and Trademarks (Term Paper Sample) Content: TRADE MARKS AND FRANCHSINGStudentà ¢Ã¢â€š ¬s Name:Course Name:Date:Trademarks and franchising are two related terms that have ubiquitously gained popularity in the contemporary legal and business spheres. While the two concepts are related in various respects, trademarks owe their roots mainly from intellectual property rights origin while franchising is a modern business innovative strategy. Franchising uses most intellectual property concepts of trademarks and enjoys almost the same legal protection as trademarks.As a matter of fact, it has been argued that trademarks form a foundation or cornerstone of franchising. Therefore, it is a fundamental legal requirement, as will be evident later in this paper, that franchising agreements conform to the legal norms and elements of a trade mark as a form of intellectual property right. The purpose of this paper, at the outset, is to discuss in depth the two concepts of trademarks and franchising. This analysis and discuss ion will focus inter alia, majorly on the legal frameworks of the two, the relationship between them and differences, if any.Trade MarksThe Historical PerspectiveHistorically, traders would apply various marks to identify their goods, distinguish them from others and indicate ownership rights over the property in form of possessory and proprietary marks. Farmers would brand and earmark their livestock for identification purposes while trade merchants would also place unique marks on their goods before they could be shipped to enable identification and retrieval of the goods in the unlikely event of a shipwreck. The concept of trademarks also has roots in the early practice of the Guilds that were trading organizations that controlled the production of goods. It was a requirement by the guilds organizations that each producer apply identifying marks and signs for their goods which would make it easier for the organizations to trace the source of substandard and unsatisfactory goods. In England, the legal protection of trademarks began at common law which recognized an action for deceit in case of an infringement of a trade mark. It later developed in the Courts of Chancery which protected traders from the tort of passing of off for traders who had acquired goodwill and reputation for via the use of certain symbols and signs in trade.[Lionel Bentley and Brad Sherman, Intellectual Property Law (New York: Oxford University Press, 2004), 5-60.] Rationale for the recognition and protection of trademarksA plethora of justifications have been put forward to bolster the legal recognition and protection granted to trade mark holders. One of the most important ones is that trademarks are a show of creativity hence their protection means the protection of the personality and labor of the producer of a given commodity. Further, the second justification and arguments for their protection and recognition is that trademarks are in the public interest as they enable the dissem ination of valuable information about a product to the consumers hence improving market efficiency. This argument has been augmented by Justice Breyer when he asserted that:[Amanda Michaels and Andrew Norris, A Practical Approach to Trade Mark Law (Oxford New York: Oxford University Press, 2010), 50-150.] [By] preventing others from copying a source-identifying mark, trademarks law reduces the customer costs of shopping and making purchases decisionsà ¢Ã¢â€š ¬for it quickly and easily assures the a potential customer that this item- the item with this mark-is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past.[S V London Borough Havering (2002)] The legal recognition and protection of trademarks is also founded on the ethical justificatory ideas of justice and fairness to the creator and owner of the trade mark sign or symbolMeaning of Trade MarksDifferent states apply different legal and business definitions of the term à ¢Ã¢ ‚ ¬Ã‹Å"trade marksà ¢Ã¢â€š ¬. The courts have also been consistent in defining what a trade mark is. However, in all the definitions attempted by various legal scholars and inherent in a variety of national and international laws, one clear thread that runs across them is that à ¢Ã¢â€š ¬Ã‹Å"identity of origin of a good or serviceà ¢Ã¢â€š ¬. Justice Frankfurter once defined a trade mark as under:A trade mark is a merchandising shortcut which induces a purchaser to select what he wants or what he has been led to believe he wantsà ¢Ã¢â€š ¬ whatever the means employed, the aim is the same-to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade mark has something of value.[Mishawaka Manufacturing Co. V Kresge Co 316.U.S. 203 (1942)] In the United Kingdom, for example, trademarks are governed by the Trade Marks Act 1994 where a trade mark is defined as any sign capable of being represe nted graphically which distinguishes the goods or services of one business from those of another.[Section 1, English Trade Marks Act] In addition, trademarks are defined by the Directive on trademarks as:A trade mark consists of any signs capable of being represented graphically, particularly words, including personal names, designs letters, numerical, the shape of goods, or of their packaging provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.[Article 2, U.K Trade Mark Directives] The main theme that underpins the trade mark law in any country is the extent of the kind of business monopoly that a registered mark confers on the trade mark owner. The legal framework of trademarks therefore aims mainly at striking a balance between the conflicting interests of the proprietor of the mark, their competitors and the final consumer of the products. The law of trademarks seeks to ensure that these three major par ties are protected against injustice and substandard goods and services.Functions of Trade MarksTrade marks play a variety of roles particularly in the business field.Identity of Product OriginThe main function that lies at the heart of trademarks law is that of indication of the origin of commodities being sold and this has been emphasized by the courts in Centrafarm V American Home Products in which the court said:The essential function of the [trade] mark, which is to give the consumer or final user a guarantee of the identity of the origin of the marked product by enabling him to distinguish, without any possible confusion, that product from others of a different provenance.[(1996) FSR, 225] This fundamental role of trademarks was reaffirmed later by an English Court when it stated:Trade marks rights constitute an essential element of the system of undistorted competitionà ¢Ã¢â€š ¬in that context, the essential function of a trade mark is to guarantee the identity of the origi n of the marked goods or services to the consumers and user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin.[Arsenal Football Club V Mathew Reed (2003) 3ALL ER 865] Quality Assurance FunctionTrade marks enable consumers of various goods and services to be sure of the quality of those commodities produced by the trade mark proprietors. This assurance of quality flows from the fact that the trade mark owner has economic advantages and interests in the products that they wish to protect from infringement and copying by competing businesses. As a consequence, they are likely to raise quality standards.The House of Lords emphasized this function of trademarks when it stated in its judgment that:The quality of goods on the offer is at the heart of all trading activities. As long as trading has existed, buyers have sought information and assurance about the quality of the merchandise on display. The use of t rademarks is an integral part of this activity.[Scandecor Developments AB V Scandecor Marketing AB (2001) UKHL 21] Advertisement and Informational RoleTrade marks may also be applied as advertisement tools and strategies by traders to create more consumer awareness about the presence, identity and uniqueness of their products as distinguishable from those of competitors. This point was succinctly stated by the court a case involving disputes over trade marks ownership rights when the court said:A trade mark is a vehicle for communicating a message to the public, and itself represents financial value. This message is incorporated into the trade mark through the message itself, whether informatively or symbolically. The message may refer to the productà ¢Ã¢â€š ¬s quality or indeed intangible values such as luxury, lifestyle, exclusivity, adventure, youth etc.[Souza Cruz SA V Hollywood SAS (2002) ETMR 64, 705] Investment RoleIn addition, Trademarks play the role of investment mechani sms whereby trades use their monopolies in the production of given commodities to lock out competition from similar businesses and require consensual or contractual agreements to part with the monopoly. Such a scheme enables the proprietor of the mark to venture in new investments areas and products that others may not be able to explore as was stated by the court that:It is also argued that trademarks have other functions which might be termed à ¢Ã¢â€š ¬Ã‹Å"communicationà ¢Ã¢â€š ¬, investments or advertising functions. Those functions are said to arise from the fact that the investment in the proportion of a product is built around the [trade] markà ¢Ã¢â€š ¬distinguishing the trade mark ownerà ¢Ã¢â€š ¬s good from those of his competitors.[Perfums Christian Dior and Perfums Christian Dior BV Vs Eura BV (1998) RPC 166 C337/95] The trade mark, as legal requirement, should be such that ... Legal Issues in Franchising and Trademarks Term Paper - 4950 Words Legal Issues in Franchising and Trademarks (Term Paper Sample) Content: TRADE MARKS AND FRANCHSINGStudentà ¢Ã¢â€š ¬s Name:Course Name:Date:Trademarks and franchising are two related terms that have ubiquitously gained popularity in the contemporary legal and business spheres. While the two concepts are related in various respects, trademarks owe their roots mainly from intellectual property rights origin while franchising is a modern business innovative strategy. Franchising uses most intellectual property concepts of trademarks and enjoys almost the same legal protection as trademarks.As a matter of fact, it has been argued that trademarks form a foundation or cornerstone of franchising. Therefore, it is a fundamental legal requirement, as will be evident later in this paper, that franchising agreements conform to the legal norms and elements of a trade mark as a form of intellectual property right. The purpose of this paper, at the outset, is to discuss in depth the two concepts of trademarks and franchising. This analysis and discuss ion will focus inter alia, majorly on the legal frameworks of the two, the relationship between them and differences, if any.Trade MarksThe Historical PerspectiveHistorically, traders would apply various marks to identify their goods, distinguish them from others and indicate ownership rights over the property in form of possessory and proprietary marks. Farmers would brand and earmark their livestock for identification purposes while trade merchants would also place unique marks on their goods before they could be shipped to enable identification and retrieval of the goods in the unlikely event of a shipwreck. The concept of trademarks also has roots in the early practice of the Guilds that were trading organizations that controlled the production of goods. It was a requirement by the guilds organizations that each producer apply identifying marks and signs for their goods which would make it easier for the organizations to trace the source of substandard and unsatisfactory goods. In England, the legal protection of trademarks began at common law which recognized an action for deceit in case of an infringement of a trade mark. It later developed in the Courts of Chancery which protected traders from the tort of passing of off for traders who had acquired goodwill and reputation for via the use of certain symbols and signs in trade.[Lionel Bentley and Brad Sherman, Intellectual Property Law (New York: Oxford University Press, 2004), 5-60.] Rationale for the recognition and protection of trademarksA plethora of justifications have been put forward to bolster the legal recognition and protection granted to trade mark holders. One of the most important ones is that trademarks are a show of creativity hence their protection means the protection of the personality and labor of the producer of a given commodity. Further, the second justification and arguments for their protection and recognition is that trademarks are in the public interest as they enable the dissem ination of valuable information about a product to the consumers hence improving market efficiency. This argument has been augmented by Justice Breyer when he asserted that:[Amanda Michaels and Andrew Norris, A Practical Approach to Trade Mark Law (Oxford New York: Oxford University Press, 2010), 50-150.] [By] preventing others from copying a source-identifying mark, trademarks law reduces the customer costs of shopping and making purchases decisionsà ¢Ã¢â€š ¬for it quickly and easily assures the a potential customer that this item- the item with this mark-is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past.[S V London Borough Havering (2002)] The legal recognition and protection of trademarks is also founded on the ethical justificatory ideas of justice and fairness to the creator and owner of the trade mark sign or symbolMeaning of Trade MarksDifferent states apply different legal and business definitions of the term à ¢Ã¢ ‚ ¬Ã‹Å"trade marksà ¢Ã¢â€š ¬. The courts have also been consistent in defining what a trade mark is. However, in all the definitions attempted by various legal scholars and inherent in a variety of national and international laws, one clear thread that runs across them is that à ¢Ã¢â€š ¬Ã‹Å"identity of origin of a good or serviceà ¢Ã¢â€š ¬. Justice Frankfurter once defined a trade mark as under:A trade mark is a merchandising shortcut which induces a purchaser to select what he wants or what he has been led to believe he wantsà ¢Ã¢â€š ¬ whatever the means employed, the aim is the same-to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade mark has something of value.[Mishawaka Manufacturing Co. V Kresge Co 316.U.S. 203 (1942)] In the United Kingdom, for example, trademarks are governed by the Trade Marks Act 1994 where a trade mark is defined as any sign capable of being represe nted graphically which distinguishes the goods or services of one business from those of another.[Section 1, English Trade Marks Act] In addition, trademarks are defined by the Directive on trademarks as:A trade mark consists of any signs capable of being represented graphically, particularly words, including personal names, designs letters, numerical, the shape of goods, or of their packaging provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.[Article 2, U.K Trade Mark Directives] The main theme that underpins the trade mark law in any country is the extent of the kind of business monopoly that a registered mark confers on the trade mark owner. The legal framework of trademarks therefore aims mainly at striking a balance between the conflicting interests of the proprietor of the mark, their competitors and the final consumer of the products. The law of trademarks seeks to ensure that these three major par ties are protected against injustice and substandard goods and services.Functions of Trade MarksTrade marks play a variety of roles particularly in the business field.Identity of Product OriginThe main function that lies at the heart of trademarks law is that of indication of the origin of commodities being sold and this has been emphasized by the courts in Centrafarm V American Home Products in which the court said:The essential function of the [trade] mark, which is to give the consumer or final user a guarantee of the identity of the origin of the marked product by enabling him to distinguish, without any possible confusion, that product from others of a different provenance.[(1996) FSR, 225] This fundamental role of trademarks was reaffirmed later by an English Court when it stated:Trade marks rights constitute an essential element of the system of undistorted competitionà ¢Ã¢â€š ¬in that context, the essential function of a trade mark is to guarantee the identity of the origi n of the marked goods or services to the consumers and user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin.[Arsenal Football Club V Mathew Reed (2003) 3ALL ER 865] Quality Assurance FunctionTrade marks enable consumers of various goods and services to be sure of the quality of those commodities produced by the trade mark proprietors. This assurance of quality flows from the fact that the trade mark owner has economic advantages and interests in the products that they wish to protect from infringement and copying by competing businesses. As a consequence, they are likely to raise quality standards.The House of Lords emphasized this function of trademarks when it stated in its judgment that:The quality of goods on the offer is at the heart of all trading activities. As long as trading has existed, buyers have sought information and assurance about the quality of the merchandise on display. The use of t rademarks is an integral part of this activity.[Scandecor Developments AB V Scandecor Marketing AB (2001) UKHL 21] Advertisement and Informational RoleTrade marks may also be applied as advertisement tools and strategies by traders to create more consumer awareness about the presence, identity and uniqueness of their products as distinguishable from those of competitors. This point was succinctly stated by the court a case involving disputes over trade marks ownership rights when the court said:A trade mark is a vehicle for communicating a message to the public, and itself represents financial value. This message is incorporated into the trade mark through the message itself, whether informatively or symbolically. The message may refer to the productà ¢Ã¢â€š ¬s quality or indeed intangible values such as luxury, lifestyle, exclusivity, adventure, youth etc.[Souza Cruz SA V Hollywood SAS (2002) ETMR 64, 705] Investment RoleIn addition, Trademarks play the role of investment mechani sms whereby trades use their monopolies in the production of given commodities to lock out competition from similar businesses and require consensual or contractual agreements to part with the monopoly. Such a scheme enables the proprietor of the mark to venture in new investments areas and products that others may not be able to explore as was stated by the court that:It is also argued that trademarks have other functions which might be termed à ¢Ã¢â€š ¬Ã‹Å"communicationà ¢Ã¢â€š ¬, investments or advertising functions. Those functions are said to arise from the fact that the investment in the proportion of a product is built around the [trade] markà ¢Ã¢â€š ¬distinguishing the trade mark ownerà ¢Ã¢â€š ¬s good from those of his competitors.[Perfums Christian Dior and Perfums Christian Dior BV Vs Eura BV (1998) RPC 166 C337/95] The trade mark, as legal requirement, should be such that ...

Voltaires thoughts on wealth and religion in Europe - Free Essay Example

Candide was written by Francois Marie Arouet, formally known as Voltaire. This book was originally Published in January 1759. Many new versions of Candide have been published since. A newer version was published in 1998 by the Electronic Scholarly Publishing Project. Many teachers believe that Candide is a great book for students to read, especially while learning about the Scientific Revolution and the Enlightenment. Candide helps the students understand the events that occurred during the Enlightenment, through a farce. Having an example of the ways that the Enlightenment affected people, gives you a much better understanding of its influence. Candide is very helpful to the study of the enlightenment because Voltaire helps introduce the thoughts of many philosophes to the eyes of it’s readers. Candide is an important book for students to read in their course of studies because it uses the ideas of the enlightenment and shows how it can is beneficial or harmful to peoples lives. Voltaire wrote the book Candide as a way to express his own thoughts on wealth and religion in Europe. When Voltaire was writing Candide, he used comedy to engage his readers, and reality to coerce them into obtaining a different view on the ways of the Enlightenment. In his work, Voltaire had the intent to inform the people of Europe of the absurdity of the transformation occurring. Candide emanated the thoughts of Voltaire, such as views on religion. Certain events in Voltaires life obtained a large impact in his writing. In his life, Voltaire was a Deist, generating him to believe that God exists and created the world, but has no impact on the world post-creation. This causes Voltaire to condemn the religious beliefs of people Candide encounters throughout his journey. Voltaire expressed his beliefs on religion and the effects of Wealth in Candide by creating El Dorado, which is â€Å"an imaginary place of great wealth and opportunity†Ã‚ ¹. With the knowledge of Voltaireâ⠂¬â„¢s religion, it becomes easier to comprehend his attitude towards the philosophical perspectives discussed throughout Candide’s journey. In the book, the main character Candide faces the effects of wealth, and the impact religion has on Europe. Voltaire has Candide face the effects of wealth as a way to show the importance and value of wealth while not taking advantage of it or completely disregarding it . This theme is developed when Candide visits El Dorado. When Cacambo and Candide arrive in El Dorado they are very astounded by the childrens etiquette. â€Å" ‘Where are we?† cried Candide. â€Å"The King’s children in this country must have an excellent education, since they are taught to show such a contempt for gold and precious stones.’ â€Å" ². With the childrens reaction towards the gold and precious stones, it showed Candide how precious materials were not seen to be the most necessary objects to possess. Not only did the etiquette of the children leave Candide and Cacambo surprised, but how even-tempered the adults were. When Candide and Cacambo were brought to a dinner and attempted to leave gold as a way to express gratitude towards the Landlords, their gold was quickly dismissed with a laugh, and were told, â€Å"I plainly perceive you are strangers, and such we are not accustomed to charge; pardon us, therefore, for laughing†  ³. This experience, left Candide and Cacambo realizing the differentiation between countries and knowing â€Å" I often perceived that things went very ill in Westphalia.† ?. This theme is also developed In Candide when a letter is received from Cunegonde notifying Candide of her illness. â€Å"The sick lady then put a plump hand out of the bed and Candide first bathed it with tears, then filled it with diamonds, leaving a purse of gold upon the easy chair.† ?. During this moment, Candide is aware of Cunegondes illness and tends to her, while also leaving precious materials for her believing that it is something that is necessary for her to have. This develops the theme of the value of wealth, by showing that to Candide and Cunegonde it is something that needs to always be around, unlike to the landlords and Kings children where it is not collected and not seen as a necessity. Throughout Candide, Voltaire expressed his religious perspectives by created El Dorado an imaginary place for opportunity. When Candide enters El Dorado he laboriously questions their religious beliefs. â€Å"Candide, who had always had a taste for metaphysics, asked whether the people of that country had any religion. The old man reddened a little at this question. â€Å"Can you doubt it?† said he; â€Å"do you take us for wretches lost to all sense of gratitude?† ?. In El Dorado Candide discovered that to the people, it was unheard of to not have a religion, and it was a necessity to their lives. To Candide, the people of El Dorado believe in God and believe that God controls everything. Voltaire seen God as someone that created the world and has no other say, causing every decision to be made by a person, not because of God. â€Å"He concerns himself so much,† replied Martin, â€Å"in the affairs of this world that it is very probable he may be in me as well as everywhere else; but I must confess, when I cast my eye on this globe, or rather globule, I cannot help thinking that God has abandoned it† ?. To Candide, Martin’s thoughts are correct. Voltaire portrayed these thoughts in Candide to express his view on religion. Martin expresses Voltaires thoughts by being a Deist, causing him to believe God has no effect on the world anymore. While reading Candide, many students will have conflicting feelings about the text. Having a background about Voltaire and the Enlightenment is very important to understanding the book. Throughout Candide many comical events would not be understood if the reader was not aware of Voltaire’s point of view. In the beginning of the book, it moves at a slower pace causing the reader to lack interest in continuing. As the book progresses, the reader begins to develop an understanding for the characters and the order of events. With this understanding, the comical points stand out more. When Martin and Candide are discussing who is pitied in society, a comical point is made. â€Å"All that I pretend to know of the matter is that there are millions of men on the earth, whose conditions are a hundred times more pitiable than those of King Charles Edward, the Emperor Ivan, or Sultan Achmet.† ?. Through this discussion, Voltaire expresses his view on the pettiness occurring with leaders. Martin and Candide’s talk helps the readers understand more Voltaire’s point of view on the leaders that obtain political power. The comedy that Voltaire includes is a main way for the readers to grasp his thought process through a real conversation. After reading Candide, it is believed that Voltaire expresses his thoughts, achieving his goal for the book. Some points that Voltaire makes throughout his work leave the reader thinking as the book continues. Thoughts developed by Voltaire in the beginning of the book about cause and effect give the readers a sense that the events that will occur in the text are the effect following a decision or lasting moment. â€Å"I conceive there can be no effect without a cause; everything is necessarily concatenated and arranged for the best.† ?. With this thought, every moment is never forgotten, because it is predicted that later on the effect will occur. Voltaire’s development of characters and the lasting effect that each one has on Candide, is captivating to a reader. â€Å"As soon as Pangloss had a little refreshed himself, Candide began to repeat his inquiries concerning Miss Cunegund. â€Å"She is dead,† replied the other. â€Å"Dead!† cried Candide, and immediately fainted away†  ¹?. With Candide’s reaction to Cunegundes death it shows how he car es for her and her impact on him. After finishing Candide some readers may find that the beginning of the book was less captivating. Even though in the beginning, Candide is thrown out of Westphalia and begins to embark on his journey, the comedic moments and impactful events on developing Voltaire’s point of view occur later on in the text. To most people, Candide is a book worth while due to the lessons it teaches about the Enlightenment and religion. As a student, Candide has a great impact on the understanding of the Enlightenment. Voltaire’s writing style of using comedy as a way to portray his message helps students imagine the moment in their heads. Not only does Candide help understand the Enlightenment but it helps develop better reading techniques. As students, Candide makes them think harder to receive a full understanding of the text. To receive a full understanding, students develop better reading techniques helping them with future texts. Most students should read Candide to progress in their learning and move towards better learning techniques. After reading Voltaire’s work, students perception of the events in the Enlightenment may change, or they may obtain a different point of view. Candide can be a very impactful read and helpful to students in ways that will help them develop as readers and writers.