1
Name
Shah Zaib
Program
359348
Student reference No.
C2073300
Candidate No.
LLM (General)
Subject
Data protection and Intellectual Property
1
2
Table of Contents
Part A .............................................................................................................................................. 3
Question # 1 ................................................................................................................................ 3
Part A: Question 2 ........................................................................................................................... 9
Summary of outcome for each case- Dior Saddle Bag ............................................................... 9
Facts ............................................................................................................................................ 9
Issues ......................................................................................................................................... 10
Decision .................................................................................................................................... 11
Summary of Outcome of each Case.......................................................................................... 11
Facts .......................................................................................................................................... 12
Issues ......................................................................................................................................... 12
Decision .................................................................................................................................... 13
Conclusion ................................................................................................................................ 13
Part B: Question 1 ......................................................................................................................... 13
2
3
Part A
Question # 1
Intellectual property (IP) refers to an individual mind’s creation which can include any invention,
design, symbol, or artistic work in any field. IP is surely the lifeblood of contemporary business.
Everyone including employers and employees needs to know about their rights accurately as it is
considered a key asset in modern business (Brewer, 2020). Esma Kartal was hired by FC as their
designer and an informal contract was finalized two years ago 1. However, after two weeks, Esma
backed off by saying that she is not interested in working with the company anymore and that the
designs are her property. She took the designs with herself. Now she is planning to produce her
line of products with a similar name. Given intellectual property rights, there must be a formal
contract between employers and the employees at the time of employment begins to avoid
complications regarding intellectual property rights. Even though Esma was hired by FC to
develop intellectual property rights, there is an absence of formal agreement between employers
and the designer which makes the case weak for the company. There is a common assumption of
employers about owning intellectual property rights which is largely correct that they are the
automatic owners of intellectual property created at their workplace. Companies normally hire
employees or independent contractors or designers to develop intellectual property for them in
the form of any new product or innovative services which belong to the company2. This type of
intellectual property right is called Copyright (WIPO, 2023). However, employers can only
claim the intellectual property rights created by their employees during their normal course of
employment activities. In contrast, intellectual property created by the employee outside the
normal course of employment does not belong to the employer, but, it surely belongs to the
1
Pitkethly RH. Intellectual property strategy in Japanese and UK companies: patent licensing
decisions and learning opportunities. Research Policy. 2001 Mar 1;30(3):425-42.
2
Colston C, Middleton K. Modern intellectual property law. Psychology Press; 2005.
3
4
employee. In relevance to this, it is extremely important to understand what it means by the
course of normal employment activities. These are the pre-defined duties and job roles of the
employees demonstrated at the commencement of the job or the beginning of the project. It
means that the IP created as a part of normal work by any employee is generally owned by the
employer. However, if he/she creates any work outside of his/her normal work duty, then it
belongs to the employee (Clayton Utz, 2010). Seeing this, the importance of employment
agreement/contract can be explored because these duties and jo roles are defined in the
employment agreement or contract which is being signed at the beginning of the project. The
employment agreement is a written document and consent that automatically transfer the
intellectual property rights developed by the employees during their course of normal
employment activities to their employers3. This document must include a clear demonstration of
the employee’s duties. Also, an acknowledgment that the employer will own the intellectual
property rights of the work produced by the employee during her course of normal employment,
and expressed consent from the employee that the employer can utilize the work without the
authorship attribution (SWS Lawyers, 2023). FC must have executed a formal agreement with
their ex-designer Esma to avoid this dispute. The lack of this formal written agreement weakens
the validity of employers’ claim to own intellectual property developed by their ex-designer,
Esma Kartal. If a written agreement was signed between the employers, Fitch & Carrie, and
Esma, it would not be a problem to legally bind Esma to not use these fabric designs under any
brand name. The absence of this demonstrated contract between the employers and Esma has
caused Esma to be bold in her self-interested actions. Such agreements are paramount to securing
IP rights for employers as they are unique and can be tailored according to the employer’s
preferences and requirements (Hagedoorn and Zobel, 2015).
Development of the intellectual property is a valuable asset for any organization. FC has spent a
lot of financial and technical resources in creating those fabric designs which are now being
claimed by its ex-designer, Esma. The failure to produce a written formal agreement has made it
3
Waelde C, Laurie G, Brown A, Kheria S, Cornwell J. Contemporary intellectual property: law
and policy. Oxford University Press; 2013.
4
5
a complex issue4. However, Esma was being paid for the innovations that she made while
developing designs for the company, and reportedly, the company also selected the final design.
Therefore, on ethical grounds, the ex-designer Esma should consider giving the rights of her
designs to be utilized by FC. The relationship between employers and employees also plays a
vital role in establishing terms and conditions regarding intellectual property rights between the
two. The employers of the company can arrange a meeting with Esma to convince her to grant
permission to give their designs to them. They can settle the dispute by offering a mutually
agreed payment between FC and Esma. The relationship between employers and ex-employees
also contributes significantly to the settlement of such conflicts because if ex-employees have
negative feelings about their previous employers they will not be able to convince themselves of
such compensations. Since the case of FC is weak in the context of intellectual property rights,
therefore, the employers must settle this issue to avoid further complications and proceed with
the plan of the new design launch by mutually agreeing to a final decision. The law also restricts
employees to be mindful of their duties and work in the best interest of the firm they work for
(Russell-Cooke LLP, 2023). So, in conclusion, from a critical view of a lawyer, the company
cannot use Esma’s design without her consent.
As far as, the issue of brand name is concerned, it is true that the name is very similar and can
confuse the customers which can significantly affect the profitability and revenue generation of
the company. This allows the employers of the FC to sue their ex-designer for the case of
Trademark infringement. It refers to the unauthorized utilization of a trademark or service
mark connected to or put on goods/services in such a way that can create confusion, mistake, or
deception about the authentic source of those goods/services. A civil action or lawsuit can be
filed against Esma in state or federal court. For this purpose, the employers of FC must prove the
ownership of the valid mark. Fitch & Carrie must prove that intellectual property belongs to
them and the defendant's mark is expected toconfuse the consumers’ minds about the
source/sponsorship of the goods offered under the parties' marks (USPTO, 2022). As the
employers of the FC own a federal trademark registration on Principal Register, a legal
presumption of the validity and ownership of the mark along with the exclusive right of using
4
Jay S, Pearson C, Farmer N. Some Reflections on Brexit and the UK Data Protection Regime.
Intellectual Property & Technology Law Journal. 2016 Dec 1;28(12):18.
5
6
that mark across the country on connected togoods/services listed in the registration. In this case,
the court will carefully consider and examine all the relevant factors that can contribute to
creating confusion among consumers about the source of goods. In addition to this, the degree of
similarity between the two marks will be investigated to find out the possibility of consumers
getting confused due to similar names. Additionally, the court will also consider the market
where these goods will be marketed, advertised, and sold. Since the name of the brand that Esma
is intended to use is very much similar to FC, it is highly expected that the court will not allow
Esma to launch her product line under this brand name. Moreover, the court will also decide by
carefully examining the purchasing conditions of the parties’ goods and services 5. Furthermore,
pieces of evidence of actual confusion can be caused by the allegedly infringing mark as well as
the defendant's intent toadopt its mark and the strength of the FC’s mark. It is extremely
important to understand that the amount and quality of the evidence involved have a significant
relationship with the outcome of an infringement lawsuit.Additionally, alongwith the claim of
confusion, FC owners may also claim trademark dilution,stating that theyown a famous mark
and if Esma will use a similar mark, it may diminish the strength or value of the FC owner's
mark because it may blur the mark's distinctiveness or tarnish the mark's image because of its
connectivity to something distasteful or objectionable, even if the likelihood of confusion does
not exist. In addition to this, a lawsuit of unfair competition, trade dress violations, and copyright
infringement may be filed against Esma for choosing a similar brand name as FC. Additionally,
unfair competition has a long history in the UK in the fashion industry. However, the UK has
well-established legal mechanisms to restrict this practice. According to British law, unfair
competition is committed by the party that uses another brand’s trade name, or advertisement’s
phrase or logo to create confusion in customers’ mindsintentionally. This allowsemployers of FC
to file the case against Esma with the claim of unlawful conduct that is using a similar name
“Fitch & Carry” which is very much similar to Fitch & Carrie” for her new product line. This
may cause significant damage to the morals of FC employers due to the violation of intellectual
property rights. It is highly expected that the court will give a decision in the favor of FC
employers because the defendant (Esma) is trying to take advantage of the strong brand
reputation of FC(Cerchia and Piccolo, 2019). She can appeal against the court’s decision.
5
Colston C, Middleton K. Modern intellectual property law. Psychology Press; 2005.
6
7
However, as per the understanding of the majority jurisprudence, her success chances are
minimum6.
After examining and critically viewing all the aspects of the case scenario, it is suggested to first
arrange a meeting with Esma on a personal level and try to settle conflicts between employers
and her. One possibility is that the lawsuit can be avoided if there is a mutual agreement
settlement occurs between the employers of FC and Esma which will restrict Esma to use the
fabric designs that were initially made for FC. This will allow FC employers to take control of
the design and use them under their trademark instead of Esma. The chances of success
ofEsmawinning the case of Trademark infringement are the lowest. Therefore, the employers of
FCFitch & Carrie do not have to worry even if she appeals against the court’s decision in the
case of losing the case.
Conclusively, it can be stated that there is a common assumption of employers about owning
intellectual property rights which is largely correct that they are the automatic owners of
intellectual property created at their workplace. Companies normally hire employees or
independent contractors or designers to develop intellectual property for them in the form of any
new product or innovative services which belong to the company. This type of intellectual
property right is called Copyright. However, employers can only claim the intellectual property
rights created by their employees during their normal course of employment activities. In
contrast, intellectual property created by the employee outside the normal course of employment
does not belong to the employer, but, it surely belongs to the employee. In relevance to this, it is
extremely important to understand what it means by the course of normal employment
activities7. These are the pre-defined duties and job roles of the employees demonstrated at the
commencement of the job or the beginning of the project. It means that the IP created as a part of
normal work by any employee is generally owned by the employer. However, if he/she creates
6
Vaver, D., 2001. Intellectual property: The state of the art. Victoria U. Wellington L. Rev., 32,
p.1.
7
Banisar D, Davies S. Global trends in privacy protection: An international survey of privacy,
data protection, and surveillance laws and developments. J. Marshall J. Computer & Info.
L.. 1999;18:1.
7
8
any work outside of his/her normal work duty, then it belongs to the employee. Seeing this, the
importance of employment agreement/contract can be explored because these duties and jo roles
are defined in the employment agreement or contract which is being signed at the beginning of
the project. The employment agreement is a written document and consent that automatically
transfer the intellectual property rights developed by the employees during their course of normal
employment activities to their employers. This document must include a clear demonstration of
the employee’s duties. Also, an acknowledgment that the employer will own the intellectual
property rights of the work produced by the employee during her course of normal employment,
and expressed consent from the employee that the employer can utilize the work without the
authorship attribution8.
8
Aplin T, Aplin TF, Davis J. Intellectual property law: text, cases, and materials. Oxford
University Press; 2013 Aug 29.
8
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Part A: Question 2
Summary of outcome for each case- Dior Saddle Bag
The summary of the case of the Dior Saddle bag has been depicted as a significant example
regarding the fashion realm kudos that has not been translated into recognizing the trademark
authorities. The summary of the outcome signifies that Dior major efforts to convince the appeal
of the board decided that the bags are not guaranteed to qualify for the distinctive trademarks9.
The customer and fashion goods companies have been signifying to register the trademarks that
are non-traditional concerning the products for a specific time with variation in the success ratio.
Lastly, the case depicts that EUIPO rejected the applications fora trademark for the shame of
LVMH Damier Azur patterns, Moon Boots, and Buffalo boots. The pattern regarding Dior
signifies the fact that the case was similar to the Guerlain lipstick that has been referred to in the
arguments of the Dior case (Rosati, 2022)
Facts
The fact of the case depicted that Dior appealed to the second board of Appeals of EUIPO that
strongly relies on the successful 3D lipstick case by Guerlain in the year 2021. The arguments
concerning the registration of Dior signify that the examiner and evaluator had much
misunderstanding regarding the category and nature of the customers to which the bag has been
sold. The case of Dior argued that the customers of the ready-to-wear couture tend to be much
more discerning than other customers and showed average and high attention and prominence to
the bag shape10. The shape of the bag was different and unique to other luxury designer goods
that are sold by other luxurious fashion housesincluding Louis Vuitton, Hermes, and Chanel
9
Banisar D, Davies S. Global trends in privacy protection: An international survey of privacy,
data protection, and surveillance laws and developments. J. Marshall J. Computer & Info.
L.. 1999;18:1.
10
Aplin T, Aplin TF, Davis J. Intellectual property law: text, cases, and materials. Oxford
University Press; 2013 Aug 29.
9
10
simultaneously11. The bag shape that is also reminiscent of the horse-riding saddle was not used
before in any brand. The fact of the case depicted that the fight regarding the recognition of the
trademark for the particular bag was not over and Dior was following the footsteps of Guerlain
making a further appeal that the decision of the general court which aims to secure the
registration on the idea of obtained difference under the EUTMR Article 7 (3). Another fact was
that the registration of a trademark offered a perpetual monopoly that was a specific and
attractive tool of enforcement if it could be attained while the design protection was equally
important that might be easy to attain. The decision of the Board of appeal concerning Dior
seemed to reflect that the registration of Guerlain might be the unique exception rather than the
rule of EUIPO rejection of the applications related to fashion-connected trademarks. The case
also highlights the fact of the significance of being able to prove the major departure from the
customs and norms of the sector included. The bag had many unusual shapes that qualify for the
protection of different-shaped bags in the market. Perhaps, Dior would have done better fared
than if the mark of 3D was applied and it would include straps and embellishments (Rosati,
2022).
Issues
In the recent installment of the fashion industry that is attempting to register the trademark of
three dimensions, the brand Christian Dior Couture has failed to make the protection of trade
mark to be secured for the unique shape of the iconic saddle bag at EUIPO just like other brand
and bag. This is in contrast sharply with British Vogue which described saddlebags as a decadedefying one12. The concern was that the fashionistas were outraged and made an appeal to the
court. The saddle bag was designed by John Galliano in the year 1999 for the ready-to-wear
11
Lundqvist B. Big data, open data, privacy regulations, intellectual property and competition
law in an internet-of-things world: The issue of accessing data. InPersonal Data in
Competition, Consumer Protection and Intellectual Property Law 2018 (pp. 191-214).
Springer, Berlin, Heidelberg.
12
Curry MR. Data protection and intellectual property: Information systems and the
Americanization of the new Europe. Environment and Planning A. 1996 May;28(5):891908.
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collection of the Dior spring collection. The bag was reimagined and redesigned in various prints
for around three thousand pounds and the bag reminds me of the horse-riding saddle that also
graced the front covers of the magazines but the shape and distinctive feature were not sufficient
to register the EU trademark (Dior, 2022).
Decision
The decision of the case depicted that the board of appeal was not convinced by the Dior
argument and also upheld the refusal to make mark registration. It has been decided by the board
of appeal that the standard for the registration of the 3D mark was the same as the figurative
trademarks and the customers are not likely to use the shape of the product as an origination and
instead rely on the shapes in accordance to the amalgamation of motifs, logos, and words13.
Practically, it might be more complex to form a distinctive and unique character in the 3D marks.
The decision of the board stressed that the norm departure was not sufficient for the distinctive
shape and marks and only those shapes must be used that are registered under European union
trademark regulation or article 7 (1)(b) (Dior, 2022).
Summary of Outcome of each Case
The summary of the case depicted that Guerlain implied making the registration of a 3D sign in
the year 2018 that was being represented on the left-hand side for the lipsticks in class 3. The
examiner of EUIPO rejected the application by the company by demonstrating that the sign will
lack unique character concerning the EUTMR Article 7 (1b). The claim that was a subsidiary of
the applicant was evaluated once the decision has been finalized. The summary of the outcome
depicted that Guerlain appealed unsuccessfully. It has been considered by EUIPO board that the
shape that was implied will not significantly depart from the customs and norms of the fashion
industry that were routinely required for the applications of a trademark that relates to the
13
Bently L, Sherman B, Gangjee D, Johnson P. Intellectual property law. Oxford university
press; 2022 Nov 9.
11
12
traditional position marks, shapes, and patterns14. The board depicted that the sign of application
was a major change in the lipstick shapes that were normally available in the market (Mainza,
2021).
Facts
The appeal of Guerlain regarding the case to the general court depicted major facts and
arguments that in comparison to the common shapes of lipstick, the product was different
substantially and thus have differences from the customs and norms of the sectors. Other facts
were that it does not involve any kind of flat surface and cannot vertically stand while the shape
was unique similar to the boat and bassinet with a hinge that opened to reveal the mirror
(Salamonowicz, 2022).
Issues
The issues were that the trademarks relatable to 3D designs were complex to obtain thus the
product illustrated significant output for Guerlain. The primary power of the registered
trademark that was compared to the design protection will help Guerlain to keep the market clear
from the copycats trying to approach the rights. Another issue in the decision was that the
permission would also give other owners of the brand the to obtain the rights of a 3D mark if
they would have a product that could show the departure from the customs and norms of the
sector. It is worth remembering that the owners of the brand would likely find complexity to
attain the 3D trademark in the market of UK as it differs from the customs of the fashion sector
(Salamonowicz, 2022).
14
Curry MR. Data protection and intellectual property: Information systems and the
Americanization of the new Europe. Environment and Planning A. 1996 May;28(5):891908.
12
13
Decision
The case decision was that the court denoted that the concept was the outset of the norms and
originality and novelty of shapes that are already in the market thus, the law needs that 3D sign
must consist of the product shape of the product that significantly diverges from the customs and
norms of the concerned fashion sector. Another concern that allowed the court to reject the
decision was that the shape was not attractive and significantly diverges from the customs and
norms of the visual effects in the eyes of the UK market (Salamonowicz, 2022).
Conclusion
Both cases represent significant effects and lessons for the fashion industry as the case depicted
that the shapes, sizes, and colors must be designed following the strict practice of the registration
by EUIPO as unusual sizes and shapes are now allowed in the industry customs and norms and
will not be admissible by the Justice court. The cases depicted that Guerlain implied to make the
registration of 3D sign in the year 2018 that was being represented in the left-hand side for the
lipsticks in class 3. The examiner of EUIPO rejected the application by the company by
demonstrating that the sign will lack unique character concerning the EUTMR article 7. It has
been considered by the EUIPO board that the shape that was implied will not significantly depart
from the customs and norms of the fashion industry that were routinely required for the
applications of a trademark that relates to the traditional position marks, shapes, and patterns.
The board depicted that the sign of application was a major change in the lipstick shapes that
were normally available in the market.
Part B: Question 1
GDPR fails to strike the balance between the burden on business and the protection of rights and
it has been currently proved by the UK. Presently, the act of data protection in the year 2018
depicted that the data protection legislation in the UK was amended and replaced by the
protection act of data in 1998. The general data protection regulation or GDPR has been resulting
to protect personal data and received a major prominence in the private sector. The companies
13
14
have undertaken cost adaptation and extensive work to meet the requirements of GDPR and its
procedures and documentation15. There are many cases in which GDPR has greatly enhanced the
protection of data and the undertaking has also resulted that there has been an increase in the
bureaucracy without concern forthe improvement of individual protection. The GDPR concern
also clearly denoted that there was a complexity and tension between the business models and
data protection legislation which relies on personal data as the company resource. With the
increase in the business complexities and regulations, the uncertainty has also increased that
allowing to make a restraining and bad impact on the GDPR and they were not able to protect the
rights of individuals that resulted in the business payingthe extra cost of compensation due to
high risk (Maazi et al., 2021).
There were many challenges and complexities that the businesses were facing due to the
difficult and vague implementation of GDPR to interpret the provision. This is because GDPR
has a lack of harmonization between the state members and also a lack of support that created
instability and uncertainty related to the data flows at the international level. Many companies
faced major uncertainties as they were ambiguous that what needs to be followed and applicable.
The desire and scope of regulating personal data processors have created major contradictions
and tension concerning the regulations of GDPR that have complicated the GDPR applications
(Hoofnagle et al., 2019).
The GDPR itself contains the seeds of diversity. It has a total of 99 articles and out of
those 99, 34 of them are ministerially dealing with the diversity aspects, not with the substantive
rights, but with the formal matters subjected to the data protection board. Out of the remaining
65 articles of GDPR, 30 of them explicitly allows the member states to diverge from the standard
set in the article. Although the member states could not modify the GDPR, every one of them
needs national legislation to accompany it. This is because such legislation is needed to fit into
the legal framework of member states and is needed to be selected among the variation permitted
in the GDPR itself (Hoofnagle et al., 2019). However, the general data protection regulation or
GDPR has been resulting to protect personal data and received a major prominence in the private
15
Ibd 1
14
15
sector. The companies have undertaken cost adaptation and extensive work to meet the
requirements of GDPR and its procedures and documentation16.
The UK legislation signifies that the automated decision provision in article 22 of the
GDPR list was not clear and was restrictively interpreted by the EDPB that limits the possibility
unnecessarily of developing artificial intelligence. As many businesses have been facing issues,
the European Commission has decided to evaluate the annual report of GDPR and EDPB that
would analyze the current legislation. American law has been also integrated for a longer time to
reduce the judgments and ambiguities from the court of the EU (Maazi et al., 2021).
In a nutshell, GDPR has been depicted to comply with the standard model of regulation
that must not be changed and the rules must be for the harmony of the companies to align with
the protection of individuals and companies (Maazi et al., 2021). This is because GDPR has
greatly enhanced the protection of data and the undertaking have also resulted that there has been
an increase in the bureaucracy without concern forthe improvement of individual protection. The
GDPR concern also clearly denoted that there was a complexity and tension between the
business models and data protection legislation which relies on personal data as the company
resource17.
16
17
Ibid2
Ibid 10
15
16
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18
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18