英语论文网

online presence. Clearly, it would be undesirable for the law to punish legitimate online users in such circumstances however this again highlights the potential conflict with the value of a registered trademark.

However, section 10 of the Trade Mark Act 1994 states that trademark infringement occurs if a person uses in the course of trade a sign that is identical with the trademark in relation to goods or services which are identical with those for which it is registered. It is questionable whether section 10 is an effective tool within the technological arena as the opening of borders through Internet trade widens the scope for floodgate claims and incurring of costs, which are arguably futile due to difficulty in policing and broader scope for anonymity on the Internet (Yan 2000).

An alternative option for protection is passing off, but the reality with domain name disputes is either cybersquatting or dilution of brand value with legal arguments of “confusion” often skating on thin ice (Kerly 2005).

CONCLUSION

The above analysis clearly demonstrates that existing models of intellectual property protection have been challenged by the pace of technological change. The shifting scope of economic value attached to intellectual assets is central to preservation of innovation and effective e-commerce. As such, the legal mechanism for intellectual property protection must reflect this. With regard to trademark protection, the most significant challenge faced is the use of domain names (Osborne 1997). The use of the domain name highlights the conflict between the value of a trademark as effective legal protection and legitimate online practice (Small & Weston 1998).

Furthermore, the contentious issue of cybersquatting exposes the difficulty in enforcing trademark protection online. Whilst a single model to encompass the range of situations covered by domain names is unrealistic, some form of official discussion is needed to avoid ad hoc interpretation of existing trademark law and passing off, which are not always appropriate. It is submitted that the issue of determining and recognising the value of a domain name as an intellectual asset needs to be addressed in the first instance before further progress can be made.

With regard to patent protection, interpretation of claims is essential to determining the scope of the patent right vis-?-vis the competitor (Bainbridge 2007). The inconsistency between the UK position under Catnic (1983) and the European position is undesirable and arguably exposes a patentee to sanctioned infringement for failing in the claims to account for what was clearly intended to be protected by the patent (Turner 1999). In fact, it is now ripe to rectify the problems caused by Catnic without further delay in order to ensure consistency going forward with the European position (Rich & James 2005). This in turn will go towards a meaningful protection of competing rights under patent law and encourage reciprocity between the UK and Europe in commerce and industry.

With regard to software patents, the inherent difficulty lies in the complexities of software and technology whereas the legislative measures and discussion to date has focused on the pressure from businesses to gain greater legal protection of software. This has led to jurisdictions trying to extend and interpret existing requirements for patentab