Private Law
Ali Eslamipanah; kamel taqizadeh
Abstract
As the emergence of the internet has brought a lot in all scientific and practical positive aspects, with the possibility of accessing intellectual property rights, it has created challenges in this field. One of the common examples of violation of these rights has been the phenomena ...
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As the emergence of the internet has brought a lot in all scientific and practical positive aspects, with the possibility of accessing intellectual property rights, it has created challenges in this field. One of the common examples of violation of these rights has been the phenomena of cybersquatting, which the authors of this article should know by examining the methods and has raised the central question of legal ways to resolve the dispute caused by that. In the present research, first by descriptive method, the concepts of trademark, domain name, and cybersquatting have been defined. Then, with a method of analysis and comparison, the process of hearing this category of claims in the WIPO Mediation and Arbitration Center with references to the Uniform Domain Name Dispute Resolution Policy (icon), it has been examined and compared with the existing methods in some national and regional law systems.The findings of this research will reveal while the principle of the jurisdiction of the courts is universal, and there is no doubt about the possibility of litigation in the national judiciary, still, the disadvantages of such a method, such as the choice of the competent authority, the rule of law, and the execution of verdicts, have always led the parties to the arbitration. In this regard, the UDRP rules contain rules for dealing with such claims that many countries have tried to settle disputes arising out of the registration of a domain that is contrary to the rights of the trademark owner by localizing its rules; The United Kingdom, Australia, and ASEAN members, among others, have different approaches.
Private Law
JAFAR NEZAMOLMOLKI
Abstract
Creation of Exceptional Courts for Proceedings Industrial Property Law Claims and Complaints has some advantages and in contrast some disadvantages. Unjustifiable high costs, grounding for abuse and misconduct, undermining the generalism view point of judges, difficulty of public access to these courts ...
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Creation of Exceptional Courts for Proceedings Industrial Property Law Claims and Complaints has some advantages and in contrast some disadvantages. Unjustifiable high costs, grounding for abuse and misconduct, undermining the generalism view point of judges, difficulty of public access to these courts and debilitating the independence of the court are the most important disadvantages that have been raised for exceptional courts in industrial property cases. In contrast creating and maintaining a specific integrated and coherent procedure in doctrine and judicial procedure, promoting and improving the status of protection of industrial property rights, improving and accelerating the process of reviewing and issuing awards in this area, reducing costs related to litigation in judicial authorities, The dynamics of judiciary system of a country in the field of scientific and practical developments in industrial property and improving the protection of business are the most important benefits of this type of courts. This article has been written based on descriptive and analytic method for study of assessment and feasibility of desirability of industrial property exceptional courts with attention to aforementioned advantages and disadvantages. The results of this study show that exceptional courts in each of its forms are not efficient for all countries and in countries such as Iran, due to the status of industrial property, the numbers of related claims and complaints and the structure and organization of courts and method of their proceeding aren’t justifiable. At present, in Iranian law, the model adopted in Articles 8 and 9 of the Commercial Procedure Bill in relation to the establishment of commercial courts in all provincial capitals (Article 8), which some of them are dedicated to intellectual property (Article 9), subject to expansion the jurisdiction of these courts to industrial property crimes is a desirable model.
Private Law
ehsan rafiealavy; saeed mahjoob
Abstract
These works have a completely different nature from traditional and modern paintings due to the lack of special rules, lack of uniform style, contradiction and foundation-breaking, and as a result individualization; To date, no specific criteria for valuing these works have been mentioned. These works ...
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These works have a completely different nature from traditional and modern paintings due to the lack of special rules, lack of uniform style, contradiction and foundation-breaking, and as a result individualization; To date, no specific criteria for valuing these works have been mentioned. These works may be brought by a commercial company, or may be mortgaged, or in some cases may lead to civil liability. The research of this article shows the following results by descriptive and qualitative research method: The psychological hermeneutic method can provide the necessary aesthetic interpretation for the judicial procedure by providing comprehensive and barrier criteria and then adapting this aesthetic to the cost valuation method with the re-costing approach can lead to the theory of the forensic expert that procedural justice and robustness. Guarantee judicial rulings. The psychological hermeneutic method can provide the necessary aesthetic interpretation for the judicial procedure by providing comprehensive and barrier criteria and then adapting this aesthetic to the cost valuation method with the re-costing approach can lead to the theory of the forensic expert that procedural justice and robustness. Guarantee judicial rulings.
Private Law
Alireza mohmmadzadeh
Abstract
The Law on Translation and Reproduction of Books, Magazines, and Audio Works, passed in 1973, is one of the rare laws that has not yet been discussed in any paper. Perhaps one of the reasons for this inattention is the ambiguity and ambiguity that each of the articles of the law in turn raises. Undoubtedly, ...
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The Law on Translation and Reproduction of Books, Magazines, and Audio Works, passed in 1973, is one of the rare laws that has not yet been discussed in any paper. Perhaps one of the reasons for this inattention is the ambiguity and ambiguity that each of the articles of the law in turn raises. Undoubtedly, the lack of a coherent intellectual flow of the law by the legislature, the lack of social sensitivity in protecting people with neighboring rights, especially artists-executors, the researchers' disregard for the rule of law, all contribute to this valley. The subject of this article is to ask these questions and answer them first, according to the national and international laws governing copyright and related rights. I hope that in future research, it will be promoted by well thought out and well-liked researchers of intellectual property rights and will be effective in protecting the neighboring rights.
Private Law
Ali Seyedin; Mahdi Karchani
Abstract
Generic trademarks are not entitled to exclusive rights, since due to lack of distinctiveness they deprive competitors of necessary words required to introduce goods and services, and eventually, they create confusion for consumers. For some reasons, a trademark may become the generic name for the category ...
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Generic trademarks are not entitled to exclusive rights, since due to lack of distinctiveness they deprive competitors of necessary words required to introduce goods and services, and eventually, they create confusion for consumers. For some reasons, a trademark may become the generic name for the category of services and goods to which it belongs; In this case, the death of a trademark which is called Genericide will occur. Semantic gap as a result of the non-existence of product or class name along with the novelty of trademark, death by patent, shorter length and simplicity compare to the product name and also market dominance as well as fame are among the prominent linguistic and social processes of trademark genericization. In order to confront the unjustified monopoly of generic trademarks, pre-registration, and post-registration, legislators can provide a couple of mechanisms that the most important are: refusal ground for registration, invalidation trial, cancellation, or removal of the registry, and limitation of exclusive rights. However, three questions shall remain to be answered, case by case, in judicial proceedings: First, what is the genus of goods and services with respect to the key aspect of the product? Second, how and from which point of view and perception of which group shall trademark be deemed generic (end users, intermediaries or, manufacturers)? Third, considering the evidence particularly surveys, linguistic tools, search engines, and testimony of members of trade-in relevant sector, what is the perception of relevant public regarding primary significance of trademark? The goal of this article is to review genericization processes, conducting a comparative study of anti-generic mechanisms of trademark law, and elaborating procedure of determining the genericness of trademark in judicial proceedings in light of US, EU, and Iran courts judgments. Finally, as needed, providing suggestions to overcome legislation shortcomings and gaps as well as optimizing proceedings regarding generic trademark.
Private Law
saeed habiba; zahra shooshtari
Abstract
Obstacles and objections are likely to arise at different stages of the arbitration process of disputes, particularly from the loser party. Defenses such as “encounter an agreement or arbitration clause with public order” or “basically not being arbitrable under the governing laws” ...
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Obstacles and objections are likely to arise at different stages of the arbitration process of disputes, particularly from the loser party. Defenses such as “encounter an agreement or arbitration clause with public order” or “basically not being arbitrable under the governing laws” are used as the ways to escape from being defeated. Given the ambiguity of the concepts of public order and arbitrability, especially in intellectual property law, and the differing views of other countries on these issues, we sought to examine what is the relationship between the concept of public order and arbitrability in the intellectual property disputes referred to arbitration. The result was that there was a split. Some have supported the theory of conformity of public order and inarbitrability. In contrast, other writers have arguments about the fundamental difference between the two.
Private Law
mina kavyani; nejadali almasi
Abstract
Publishing literatures and artworks under copyright protection in the internet and the possibility of widespread infringement of these rights by millions of internet users all over the world, raises this important question that “Which law would be applicable in conflict of two or more laws?” ...
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Publishing literatures and artworks under copyright protection in the internet and the possibility of widespread infringement of these rights by millions of internet users all over the world, raises this important question that “Which law would be applicable in conflict of two or more laws?” In addition, “In determination of governing law in copyright infringement in cyberspace, are traditional conflict of laws rules still applicable or new rules are needed in this area”? This article studies the issue by the separation of two assumptions of agreement and disagreement on applicable law in contractual and non-contractual infringement of copyright in cyberspace. In contractual infringement, which has the agreement on the governing law, the procedure of most of the countries and international conventions is, acceptance of principle of will. In contractual infringement in absence of agreement on governing law, different criteria have been adopted which the most important one of them is applying the law of the country which has the closest relation with the contract. In non-contractual infringement which has been agreed on governing law, there are two general viewpoints between lawyers, countries and international regulations. Some don’t accept the principle of will because of the connection of torts with public discipline and others recognize rule of will in determination of the governing law before and after the loss. Finally in assumption of disagreement in non-contractual infringement, which is the most common kind of infringement of these right in cyberspace, among different theories (including Lex Fori, Lex Loci Delicti, Lex Loci Protectionis) the theory of the law of the closest country, has been suggested as the most appropriate solution in order to determine the governing law.
Private Law
Rasul Mazaheri Kuhanestani; Shabnam Naseri
Abstract
Nowadays, the concept of intellectual property rights has found striking importance in commercial interactions and plays an important role in countries’ economic development. New contractual frameworks for transactions have been developed for these assets whereof the “agreement of patent ...
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Nowadays, the concept of intellectual property rights has found striking importance in commercial interactions and plays an important role in countries’ economic development. New contractual frameworks for transactions have been developed for these assets whereof the “agreement of patent assignment” is a shining example. Since the nature of patent is an independent category of rights with its own effects and characteristics, patent assignment agreement in the same way, are not to be justified by any previous type of agreement. Permanent and unconditional property transferring is its main distinguishing feature with other emerging agreement forms in technology fields. Based on this, the contract of patent assignment should be regarded as an undefined and independent agreement which lays into the domain of article 10 of the Iranian civil code which as well as general conditions (mentioned in article 190 of this code), contains specific regulations and conditions. This specific essence makes particular obligations for both parties and presents specific issues in dissolving such contract which requires comprehensive legal analysis. This article is meant to analyze and clarify all aspects of such agreement
Private Law
Ebrahim Rahbari; Hassan Lajmorak
Abstract
Sport publicity or image right is a right by which athlete finds exclusive right in exploiting his publicity, image, personality and identity and can grant others the permission to use them and on the other hand, prevent the unauthorized use of this right by others. Having regarded the approaches of ...
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Sport publicity or image right is a right by which athlete finds exclusive right in exploiting his publicity, image, personality and identity and can grant others the permission to use them and on the other hand, prevent the unauthorized use of this right by others. Having regarded the approaches of leading legal systems in such field, this article analyses the process of formation and recognition of this right for athletes and examines the reasons for its existence and its justifications and solutions against who infringe this legal right. In some legal systems, image right has been recognized as an independent right and commercial value attached to the identity of athletes, regarding some exceptions, is legally under protection. Registration of images as trademarks, exploiting the potentials of passing off actions and trade secrets system as well as dilutions actions, help athletes supporting their rights in such field. Although In Iranian law the existence of some obscure regulations beside some general rules such as the necessity of protection the rights relating to the personality and civil responsibilities may solve some problems but the results of this paper indicate the ambiguity and in efficiency of Iranian's existing regulations and legal literature regarding the effective protection of athletes' rights to their publicity and images, which necessitate employing the established rules in this domain in order to fill the gaps and correct the legal deficiencies.
Private Law
Mohsen Esmaili; Mahdi Abbasi Sarmadi
Abstract
AbstractThe conflict resolution rules pertaining to determination of applicable law on the subjects of intellectual property law including copyright are seriously challenged by the advent of Internet. This is because of much increase in the possibility of misuse from copyrighted works and also infringement ...
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AbstractThe conflict resolution rules pertaining to determination of applicable law on the subjects of intellectual property law including copyright are seriously challenged by the advent of Internet. This is because of much increase in the possibility of misuse from copyrighted works and also infringement of the creator’s rights around the world due to the spread of Internet use. The specific nature of intellectual property and the domination of the principle of territoriality as well as the diversity of these rights and lack of internationally accepted conflict resolution rules specific to intellectual property law lead to numerous different problems for the courts in each of the different countries of the world. Hence, in order to achieve the most effective rules of conflict resolutions in this field and particularly in relation to solving the problems caused by Internet, existing laws and regulations were studied using documentary method. The findings of this research indicate that the closest connection rule which is raised and supported by modern academic approaches such as the system designed by American Law Institute can be useful and effective in confronting the challenges and limitations of intellectual property law both in theoretical and practical aspects.
