Abstract
The aim of this paper is to discuss and provide general information about international intellectual property particularly the trademark law. Throughout the paper, I will discuss about intellectual property and analyze the role of trademark law in dealing with cultural issue, economic matters, and technological advancement. The paper will also analyze the interaction between the trademark law and industrial products in our world today whilst also trying to assess how effective is the international intellectual property policy (trademark) in curbing infringement acts among the member countries. Generally, this paper shall provide an in depth understanding of trademark treaties and its impact on the intellectual property especially among the member countries.
Introduction
Original work of art, music, writing, movie making, symbols creation, names and slogans among many others all have a creator (Runge, 2002). For this reason, individual’s creative work is very valuable and must be granted protection to stop other people from copying or duplicating it. Trademark Law falls under the intellectual property and has been put in place to ensure that all unique creations are safe from infringement acts (McJohn, 2006). Generally, trademark law also known as trademark refers to the legal protection rights granted to individuals over their creative products in the scientific areas, industrial sector, artistic fields and technological departments among others (Yang, 2003). Usually, trademark law gives the creator of any creative work the exclusive rights against infringement although it does not exist for a life time; trademark law only exist for a limited period of time (period of about twenty years) (Hanel, 2006). After expiry of the stipulated time, the license becomes void meaning that the trademark is now available for public domain and can be used freely by others (Branstetter et al 2011).
Today, intellectual protection has become a universal tool across the world (Runge, 2002). The trademark act in most developed countries including US, Germany, Japan among others have been standardized by some of the international organizations such as WTO, Universal Copyright and WIPO. All the member countries have conformed to various forms of IP including; patent, trademark and copyright (Yang, 2003). In most cases, intellectual owners would be interested to protect their original creations such as logos and brand name for numerous reasons. The first reason why a person would want to protect trademark property is for economic benefit attached to such products (Drahos and Maher, 2004). Continuous protection of trademark gives the owner some financial rewards; secondly, during period of protection, the owner has all rights including licensing his product (Benedict.com, 2011). Through these rights the owner can acquire more financial benefits.
The Trademark Law
The Intellectual Property rights are subdivided into three major categories, namely; trademarks, patents and copyrights (Awokuse and Yin, 2010). Trademark is one major sub-division of intellectual property rights. In most cases, it offers protection of symbols or logos and is well defined under the trademark law (Copyright Agency, 2011). A trademark is anything unique that can be used in identifying the product of an inventor from products of others (Copyright Agency, 2011). Trademark mostly includes symbols, sounds, brand name and logos among others (Copyright Agency, 2011). As such, trademark is very essential in business sector since it is the face of company’s/individual’s products. Once an inventor has his product identified with a logo, it marks the first step of safeguarding the creative work and an inventor can live without fear of others interfering with their intellectual products (Gao, 2001). For instance, a logo just like that of Coca-Cola Company is susceptible to copyright since it includes design work and artistic elements and therefore such a logo must be registered to ensure that it is protected against duplication (Copyright Agency, 2011). On the other hand, the extent to which trademarks are accorded protection matters; logos that are very distinct for instance are awarded more protection than less distinct ones (Copyright Agency, 2011).
The trademark law is meant to protect intellectual property by granting product creators the legal rights and this is true since the aim of international trademark treaties is to facilitate protection of trademarks in the society (Bainbridge and Bainbridge, 2009). However, development and implementation of trademark law involves some procedures. Frequently, the implementation process includes signing of agreement between the product creator and the authority of a particular state (Branstetter et al 2011). As such, an inventor who is seeking for protection of the their trademarks must disclose full details of the product and how the trademark has developed in order to receive legal protection rights that will ensure no violation of such trademark law by others (Benedict.com, 2011). Infringers may resell, reuse or duplicate the creative work (Terrence, 2000).
International trademark treaties
Due to the fact that intellectual products are susceptible to infringement cases all over the world, the international community has come up with a solution over the years. Throughout the history, the world has adopted some of the most fundamental treaties meant to ensure that trademark products have been protected. The following discussion will address extensively the subject of international trademark treaties which include the major agreement between different countries as a measure to offer protection of their intellectual property.
International trademark treaties are laws that are adopted by different countries in order to safeguard and protect intellectual property (Kaufman, 2001). Mostly, the treaties are established with an aim to protect rights, harmonizing intellectual property law and facilitating filing infringement cases among the member countries (Brookman, 1999). There are a number of international treaties that affect the trademark Law which include the following.
The first form of international trademark treaty is the all-party treaties and agreements such as the Paris convention, the Madrid protocol, the Vienna agreement, the trademark Law, TRIPS, the nice agreement on the international classification, the Madrid agreement on indications of origin and the Singapore treaty on trademark Law (Kaufman, 2001).
All the mentioned agreements form the international Law meant to secure protection of trademark across international borders. The second form of international trademark treaty includes all regional agreements which are established by countries within a giving region. Example in these category include; ARIPO and OAPI which are trademark treaties formed by the African countries, the Andean Pact agreement formed by south American countries and the European Community Trademark among others (Kaufman, 2001). Finally, another form of international trademark treaties also includes the bilateral treaty between two countries. This form of international treaty is common among neighboring countries and can also be signed between a country and an intergovernmental organization. The following discussion will address each of the mentioned treaty in order to have a basic understanding of the trademark treaty.
The Paris convection. The “Paris convention for protection of creative property” is among the earliest form of international treaty in regard to protection of intellectual property (Brookman, 1999). The Paris convention acts as a universal tool and it ensures that all the member countries enjoy the same level of treatment since they are signatory countries. The protection rights cover numerous areas such as protection of logos, brands names and all claims which have been filed in concern to unfair competition (Brookman, 1999). The Paris agreement was established towards the end of the 18th century around the year 1883 although it has been revised time after time in order to make it become more practical in the world today. In the Paris conference the following has been addressed: one, the creation of a legal body that is widely accepted in the international law (Kaufman, 2001). This legal body includes the world intellectual property organization (WIPO), the congress and the managerial committee.
Secondly, the treaty also has the national treatment. Under the national treatment, all member countries are given a guarantee in regard to protection right which also means that all the member countries are accorded the same level of treatment since they are under that same treaty (Kaufman, 2001). In fact, every citizen of the countries under the treaty enjoys the advantages attached to the treaty. The third topic which has also been covered is the convention priority. According to the treaty, all the people who file cases and are citizens of the member countries are given the priority since they have the right to enjoy the protection. Therefore, a case is addressed as soon as possible, usually within a period of six months after the case has been filed (Brookman, 1999).
The Nice Agreement. The Nice Agreement is a treaty that is concerned with the international laws in regard to registration of trademarks. It has categorized thirty four classes of goods and eleven classes of services which have been protected under this agreement. The Nice agreement was established by the “Nice Diplomatic Conference” in middle 1957 (Kaufman, 2001). However after the law was established, there were minor developments and the policy was fully implemented in the year 1961. This agreement is popular and has been used by some of the international organizational including WIPO and OHIM (Kaufman, 2001). Additionally, the agreement has also been used by some of the jurisdiction in the planet today.
The Vienna Agreement. The “Vienna Agreement Establishing and Classification of the Figurative Elements of Marks” was established in the 1973 and has been improved several times to make it more applicable (Brookman, 1999). Mainly the agreement covers protection of intellectual property such as drawings, logos, and pictures.
The Madrid Agreement. “The Madrid Agreement for repression of false or deceptive indications of the source on Goods” (Kaufman, 2001). This policy was adopted towards the end of the 18th century and has been revised more that three times with the latest revision having been done in the year 1967 (Kaufman, 2001). The Madrid agreement provides protection of goods bearing false signs.
Regional agreements adopted by American nations. The Andean Pact is the first form of agreement under this policy (Brookman, 1999). It was established in South America to form a convention among the member states which is now popularly known as Andean community and includes Bolivia, Peru, Colombia and Ecuador (Kaufman, 2001). The community contains the trade regulations for all its members and has established a common law to safeguard intellectual property. The other one is the NAFTA- North American Free trade Agreement which was established in the year 1992 by three countries including US, Canada and Mexico (Brookman, 1999). The treaty provides legal protection of intellectual property among the three member countries. The third category under this treaty is the CAFTA-DR. Central America free trade agreement which was adopted in the year 2004; it has members in US, Elsalvardor, Nicarcagua and Costa Rica among other members (Kaufman, 2001). The treaty aims at protecting intellectual property among the member countries. As a protective measure, the treaty requires all the member countries to register their creative work in order to ensure that intellectual property is fully covered within the borders (Brookman, 1999).
The Madrid system. The Madrid agreement and the Madrid protocol make up the Madrid system which forms laws on international protection of trademarks. The Madrid system was formulated in 1891 but was put into practice in 1892 (Kaufman, 2001). However, it was revised several times in 1911, 1925, 1934, 1957 and 1967, and was later modified in 1979 to be more efficient (Brookman, 1999). Any country is a signatory to the Paris convention is also eligible to join the Madrid agreement. A citizen of any member country is fully entitled to protection of their intellectual property particularly trademark by international registration (Brookman, 1999). As a universal procedure, any applicant can apply from their nation’s office or either through the regional office which forwards the application to the international trademark protection office (Kaufman, 2001).
The Madrid protocol is another treaty; this treaty is related to the Madrid agreement and was established in 1989 and put into practice in December 1st 1995 (Kaufman, 2001). This makes the Madrid agreement more adjustable because it allows members to gain protection even in cases where ones application was turned down or cancelled by national laws. It can be converted to national protection without losing the date of withdrawn application (Brookman, 1999).
TRIPS. The “Agreement on Trade-Related Aspects of Intellectual Property Rights” (Kaufman, 2001).
It is the basis that introduced intellectual property laws into the multilateral trading system for nations that are affiliates of the World Trade Organization (WTO); TRIPS came into existence on January 1 1995 (Brookman, 1999). The agreement has the following functions; it describes what types of signs fit for protection, gives security of service marks, outlines the minimum privileges for trademark owners, confers extra security for marks that are well recognized in specific countries and describes the standards concerning the availability, scope and use of intellectual property rights which includes copyright, trademarks, designs and patents (Kaufman, 2001). It also provides protection of information that has not been put to the public and non-competitive practices in predetermined licenses (Kaufman, 2001).
TRIPS allows for transition phases during the application for treaties, dependent on the level of growth of a specific nation (Brookman, 1999). For most development countries the period of transition is one year after signing of the agreement while for developing nations they take five years to get fully into the treaty. Singapore Treaty on the law of trademarks is also another treaty; it was established in the year 2006 and was put in place with an aim of creating harmony and advanced ways of registering trademarks (Kaufman, 2001). This treaty allows for recording of non-traditional marks.
“African Regional Intellectual Property Organization” (ARIPO) is one of agreements established by African nations (Kaufman, 2001). This treaty was established by certain English speaking countries which initially were in the Lusaka agreement, which allows members to file for application through Harare office in Zimbabwe requesting for priority as per the Paris convention (Kaufman, 2001).
OAPI African intellectual property organization’ was established in 1977 by French speaking countries in Africa through the Bangui agreement to help in protecting intellectual property and has its origins in the Libreville agreement of 1962 (Brookman, 1999). It created a regional office based In Yaoundé Cameroon where members can file for registration of trademarks (Kaufman, 2001).
The community Trademark. The European Community Trade Mark system (CTM) was put in place in 1996 and originally covered 15 countries of the European Union: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (Brookman, 1999). The CTM has been expanded to the following nations, which afterwards joined the European Union: Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, the Slovak Republic and Slovenia (Kaufman, 2001). Before the establishment of CTM citizens were required to file application in their various countries and in the Benelux nations to gain protection across the European Union but now people can get protection only by filing a single trademark protection request across the European Union (Kaufman, 2001).
Internet Vs trademark rights today
Globalization has accelerated the need to standardize trademark rights and there is also a growing need to harmonize the trademark law to cover the newly emerged departments such as e-commerce among others (Giannakas, 2003). Generally, internet and issues of globalization have a great impact on subject related to infringement of trademark rights and therefore making it hard to protect unique symbols, slogans and logos among other trademarks available on the internet because different people have varied opinions regarding availability of internet products (Bently and Sherman, 2008). Due to this issue, the following discussion will analyze the trademark Law and how it protects against use of trademarks that are available on the website.
Internet has become an instrument of business transaction where people are conducting business across the world (Bainbridge, 2009). Today most business transactions are done by the use of internet; entrepreneurs are advertising their products and designs on the website (Bosworth and Yang, 2000). Small and medium enterprises find it convenient to use the internet in carrying out business transactions; it is the easy way to ensure that all trademarks access the international market. Apart from all the advantages associated with e-commerce, the internet is also the cause of major crisis in terms business for many firms because a lot of people can access such website and their products which also gives infringers good opportunities to develop ideas from the trademarks (Bainbridge, 2009). This means that they can also duplicate the same product. For this reason, a firm should regularly carry out auditing of their online assets from time to time to ensure that they keep a track of their trademark (Bosworth and Yang, 2000). As a protective measure, a website has been created to help small enterprises to learn and appreciate the importance of protecting their trademark products.
Across the world, big firms value trademarks because they find it worthy to protect their products from other companies to avoid competition and duplication of their products while small firms concentrate on keeping their product to themselves to prevent other people from developing their invention to something bigger. This is because small companies lack the finances to develop their products (MacCalman, 2005). For most small and medium enterprises, protecting their intellectual products from infringement is expensive and even in cases where they are certain that their trademarks have been stolen they cannot file the case to court since they are not able to meet the cost (Goldstein, 2001). On the other hand, big firms invest a lot time carrying out research to develop their trademarks and therefore they find it cost effective to protect their products. In fact, in the society today more cases of big companies filing for protection of trademarks are more rampant than those of small firms. This means that big firms can expose themselves to a wider market without fear of infringement compared to small and medium enterprises who view confidentiality of their products as the better solution to infringement (Borg, 2001).
Generally, the internet has made it easy for infringement of trademark rights due to the ability of a wide audience being able to access creative products especially those owned by small and medium entrepreneurs. It is easy for someone to duplicate a product especially if the product is not protected although internet has also enabled the firms to get a bigger market hence maximizing on their trademarks (Borg, 2001). Small and medium enterprises have found it hard to use the internet for fear of infringement since they may incur a lot of expense while trying to protect their products against infringement as well as developing the product to avoid competition. In most countries trademark laws are not incorporated in production process and hence small inventors find it hard to stand against the big firms that have finances to buy patent for their inventions or file a case against infringement cases (Borg, 2001).
Protecting intellectual property (trademark) today
The first step to ensure that trademark such as brand name, slogan and logos are safe from infringement is through registering them under the trademark laws. Therefore, a product creator must ensure that his trademark has been registered in order to get protection rights (Dratler, 1991). Registration process is different and every country has its own guidelines on registration of trademark. Commonly, the first step mainly requires the patent agency to carry out an identification process. The agency does product certification by making certain that the trademark belongs to you and has not been registered before by any other person (Gao, 2001). The identification process is used to evaluate whether the trademark is worth to be registered according to federal laws. However, registration of one’s trademark in country of origin does not cover for other foreign countries (Yang, 2003). The owner of intellectual property should consider having their trademark registered in other countries that an individual may be willing to market his products in order to make sure that the product is legally protected under the trademark Law. Just before a product developer decides to register his product, one must carry out an extensive research to find out if the trademark is already registered (Copyright Agency, 2011).
The opinion is that, a product inventor can carry out his own research, or either contacts an attorney. Alternatively, an inventor can contact an intellectual property right search firm who can organize the research on his behalf since they know what to exactly look for. Moreover, when trying to register trademarks in neighboring countries especially those that use different language, an individual needs to have his product outlined in language version from his own country to avoid foreign countries from tampering with their trademark (Copyright Agency, 2011). The inventor can protect his trademark by providing full registration details including dates of registration, registration numbers and so on (Lai, 1996). By itself, the registration process is very basic because it makes sure that intellectual product is attributed to its rightful owner and therefore an inventor has the right to file a petition against anyone who tries to use the intellectual product once it has been registered. However, trademark registration is not a must and any inventor has his own choice in regard to getting his product registered; this entirely dependents on individual’s interest to protect their trademark (Timmermans, 2003).
Additionally, the registration process helps in identifying when a trademark was created and protects it from being used by other people. If someone is interested in registration of their intellectual product, one has to hand in copies of their creative work to the government offices which will facilitate the registration process (Copyright Agency, 2011). However, laws on trademark right vary from country to country and therefore an individual cannot have their intellectual property under a protection cover that works internationally (Martin, 2002). Alternatively, as we have already seen there are international laws that can facilitate protection to a certain level. A product developer who plans to sell their products in other countries should consider doing international registration with trademark agencies in foreign countries or have an international form of registration which ensures protection of intellectual products at all customs and borders (Timmermans, 2003). Moreover, international registration ensures that any counterfeit products cannot pass through the borders.
It is very important and basic for trademark owners to understand how to register trademarks in foreign countries in order to acquire market rights for the intellectual products. Once individuals have their work registered in the country of origin they can consider registering the same work in other countries if they intend to market such intellectual products to foreign countries (Lai, 1996). This process will ensure that there is no infringement of trademark at international levels. However, there are countries that have the trademark cooperation authority and their policies only allow an inventor to do one trademark application in order to get international cover (Lai, 1996). For instance “the Madrid protocol makes it easy to file a trademark protection in multiple countries” (Lai, 1996). But there are other countries that have settlements to protect the citizens of foreign countries and therefore one does not need to register their products to enjoy the trademark rights.
Finally, after the registration process is complete, an inventor must make a follow up to enforce trademark rights in foreign countries (Lai, 1996). A product developer must ensure that he has trademark rights in those countries which he intends to market his products; once an individual has established copyright he should register his intellectual product in accordance with the local available laws (Giannakas, 2003). This can be done through contacting the attorneys and other experts with legal experience in foreign countries and they will help an individual get his product registered to ensure full trademark protection in those foreign countries (Dratler, 1991).
How effective is the international trademark in the society today
In one way the international trademark Law is an effective tool in numerous ways. First, international trademark treaties allows people from member states the ability to go through simple registration procedures unlike what people who are not part of the treaty will have to go through (Brookman, 1999). For instance they do not need to turn in numerous certificates of incorporation, chamber of commerce certificates, and witness to file for an application (Brookman, 1999). Secondly, all people receive same benefits because the trademark protection rights are outlined by the Paris convention which binds all member states equally (Kaufman, 2001).
Individuals and companies are allowed to use one application to cover numerous international levels of registration with the original date of application (Kaufman, 2001). In case of numerous applications and registration on same title one document can be presented to cover them all at the same time. Additionally, trademark registration does not require codes to be signed against their registration since the Paris convention provides all the member states with the procedures that they can use within their countries to make sure that all states operate under equal regulations and codes (Kaufman, 2001). Furthermore, people can renew their application even after ten years of expiration of their recording. Generally, the international treaties try to create a balance in operation and protection of trademarks in different states for the benefits of all its members making protection of intellectual rights easy and effective. Finally, the procedure of registration is simplified across borders which gives all stakeholders an opportunity to operate without fear of infringement and incase it occurs it can be easily detected and dealt with under same laws (Kaufman, 2001).
On the other hand, we have understood to what extent the trademark right guarantees safety against infringement acts and how this contributes in reducing cases of duplication and copyright among many other ways of infringement (Giannakas, 2003). However, in this era of globalization, protection of intellectual property is facing more challenges and cases of infringement are growing every day. For this reason, most people have been concerned and are even questioning whether the trademark law in place has been effective in its mandate to grant exclusive right to intellectual property. In reality it appears internet is causing more harm to small and medium enterprises because intellectual products in this sector are at risk (Borg, 2001). Moreover, this concept appears as the most biased form of business terms since it does not guarantee protection of intellectual products for all business stakeholders (Kleve et al, 2007).
Alternatively, the emergence of information technology and globalization has also ensured that trademark right has also moved to areas where there was less or no protection (Sarkissian, 2003). Basically, trademark right needs to assure better market ideas instead of protecting unique creations in this era of economic hard times. In this global-based economy, entrepreneurs should develop new product and seek intellectual property rights of high standards that will enable them enjoy market advantage over the duplicate product (Martin, 2002).
However, with the level of computer based technology in the planet today, the future solution to this global crisis lies in the foundationof how a company can be able to develop technological products and secure better intellectual property protection in the wake of market and product competition (Drahos and Maher, 2004). Since trademarks are valuable, the solution to infringement can be achieved through collaboration of various stakeholders. For instance, two or more organizations can develop a trademark together and then seek protection of such product as a team. In fact, through such approaches it becomes more efficient and easier to curb infringement.
However, a product developer should be fully aware that acquiring the trademark rights of his work is only a short term solution and once the rights have expired, the product become open to public domain again (Giannakas, 2003). Therefore there is need to have a long lasting solution to the situation. The best option is that before the time for expiration passes, the inventor of the product should ensure they have acquired maximum benefits from the product including higher profit, good market responses and so on. This can be achieved by making sure that international trademark right is able to guarantee maximum protection of trademarks to nature creativity.
Conclusion and Recommendation
Infringement of the trademark rights is a growing crisis in the world today. Therefore, there is need to adapt new policies that will fight this behavior so as to empower inventors. With the emergence of information technology, infringement cases have become more rampant and there is greater need to determine new ways of curbing this negative behavior that is discouraging developments in the society (Chu and Peng, 2011). Because of globalization individuals are able to develop and share new ideas and this therefore gives individual an opportunity to create products that are useful in the society (Sarkissian, 2003).
However, because of globalization and technology changes, violation of trademark rights has also increased since the use of internet has greatly enhanced sharing of materials via internet including ideas, downloading files and so on (Terrence, 2000). In the turn of 21st century the world has become a global village where people, institutions and organization are enjoying easy access to information and other resourceful materials via internet. A better and long lasting solution should be acquired to reduce frustrating products developers. For instance, the criminal justice system can develop and adapt new laws in regard to infringement acts. They can also implement tough actions against those people found on the wrong side of the law. Alternatively, owners of intellectual work should always be on the lookout to report any instances of infringement cases and the community should come together and campaign against this negative behavior (Fishman, 2008).
All countries participating in the international market should harmonize laws in order to ensure that violation of trademark right is dealt with across borders (Chu and Peng, 2011). This will deter criminals once they realize that surveillance has also increased. On the other hand, the trademark Laws should seek to come up with a long term solution that will ensure that product developers enjoy the fruits of their hard work in unlimited time span. As opposed to specific duration under which an individual enjoys the trademark rights, new policies should be developed to make certain that inventors enjoys more benefit even after the trademark becomes open to the public. Due to economic hard times, the world should prioritize the fight against violation of intellectual rights which has resulted to economic stagnation among the product developers. This trend is affecting individuals, partners and other big organizations that are also losing billions of money every year due to infringement behavior. Generally, infringement also causes economic stagnation in terms of development and has negative impact on growth of economy globally. For this reason there should be increased global movement that will advocate against violation of trademark rights across the world.
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