Benihana Company Essay

Helping our guests feel welcome is as important as our cooking. And it is just as great a skill. Ever striving for excellence in hospitality, it is truly our restaurant family who has built Benihana’s success. Company History: Benihana, Inc. owns and licenses restaurants in the Benihana and Benihana Grill chain of Japanese dinnerhouses. The restaurants specialize in an exhibition-style of Japanese cooking called teppanyaki. Customers sit around a communal table at which a Benihana chef slices their seafood, steak, chicken, and vegetables with lightning speed, grills their meal right in front of them, and then tosses it accurately onto their plates. The restaurants are decorated with Samurai armor and valuable art, and Shoji rice paper screens partition the dining areas. For the fiscal year ending March 31, 1996, the company had sales of over $81 million, an all-time high. By December 1996, Benihana operated a total of 49 licensed and wholly owned restaurants in 20 states as well as in Bogota, Columbia, and Aruba, Netherlands Antilles. Early History, from Tokyo to New York The founder of Benihana, Inc. was a 25-year-old Olympic wrestler from Japan named Hiroaki Rocky Aoki. He got his start in the restaurant business by working after school in his family’s coffee shop in downtown Tokyo. His mother named the family business Benihana after a red flower that survived the bombing of Tokyo during World War II. Rocky was a scrapper, defending himself in the streets and schoolyards against bigger boys. He got hooked on wrestling, became a national university champion, and earned a place on the 1960 Olympic team. Although he didn’t compete because he was over his weight limit, he did fall in love with New York when the plane stopped there on the way to the Games in Rome. That fall he left Japan for the United States. In 1964, Aoki graduated from New York Community College’s School of Hotel and Restaurant Management. During the summer he earned money driving the only ice cream truck in Harlem. The job was not easy, as he explained in an article in Management Review. â€Å"Every time I robbed, I get up earlier the next day and work later to make up. Every time I lose money, I get more challenge.† With that philosophy, he managed to save $10,000 during the summer, which, along with a loan, was enough to start his first restaurant, Benihana of Tokyo. Aoki’s concept for his new restaurant, derived from specialty restaurants he knew of in Japan, was part entertainment and part food service. He wanted to offer Americans food they were familiar with, such as chicken, steak, and shrimp, prepared in a novel setting. He chose the teppanyaki table–a stainless steel grill surrounded by a wooden eating surface–where customers could watch a knife-wielding, joke-telling chef prepare and serve their food. His parents and brothers came from Japan to help him get started. Unfortunately, New Yorkers equated Japanese food with raw fish and weren’t comfortable sitting at a table with strangers. They ignored the midtown Manhattan eatery until the restaurant critic of the New York Herald Tribune gave it a glowing review. Suddenly, everyone in New York, including the Beatles and Muhammad Ali, wanted to sit around one of Benihana of Tokyo’s four teppanyaki tables. Within six months after the review the restaurant had paid for itself, and Aoki quickly opened another restaurant in a larger, fancier building. The new location provided the same teppanyaki-style cooking but was decorated with valuable art, Samurai armor, heavy wooden ceiling beams brought from Japan by Aoki’s father, and sliding Shoji screens to provide some privacy. 1965-80: Building a Company The Benihana concept combined reasonable prices with good food, and, by preparing what was eaten right at the table, held waste to a minimum. Profits were good, and, in 1968, Aoki opened his first Benihana of Tokyo outside New York City–in downtown Chicago. That location made $700,000 in its first year and continued to be one of the company’s top earning outlets. Between 1969 and 1972, the company opened six more of its own restaurants and licensed franchisees to open another ten. In a joint venture with the Las Vegas Hilton, the company developed Benihana Village, a 38,000-square-foot complex of restaurants, bars, and other entertainment venues. In 1972, the company grossed $12 million and the Harvard Business School selected Benihana of Tokyo as a case study of an entrepreneurial success story. With business going so well, Rocky Aoki could devote time to his other interests which included racing balloons and powerboats, collecting items ranging from vintage cars to slot machines and learning backgammon. â€Å"Rocky wanted to play,† Joel Schwartz, the company’s president, explained in a 1989 Forbes article. To help oversee the chain’s operations and expansion, Aoki brought in a management company, Hardwicke Cos., as a partner in 1976. The relationship lasted only four years and, in 1980, Aoki ended the partnership, paying $3.7 million to break the contract. As Rod Willis of Management Review explained in a 1986 article, â€Å"He [Aoki] felt the company’s management style clashed with his predominately Oriental workforce, and he wanted to maintain control over each restaurant’s quality.† The following year Aoki settled, without admitting any guilt, a Securities and Exchange Commission charge that he had improperly traded in Hardwicke stock while serving as vice-president of Hardwicke. The 1980s: Ups and Downs To help pay off the debt incurred in the split with Hardwicke, Aoki decided to take part of the company public. He accomplished this by having Benihana of Tokyo (BOT) form Benihana National Corporation (BNC) in 1982 and then taking the latter company public the following year. Investors paid the Miami-based BNC $11 for a unit consisting of two common shares and a warrant to buy another at $6. With the $5.5 million raised by selling half a million of these units, BNC bought 11 restaurants from Aoki in exchange for 60 percent of the BNC common stock and $2.5 million to pay BOT’s debt. Later in the year, BNC bought another three restaurants from BOT for $7 million. In spite of the new corporate structure, Benihana of Tokyo and Benihana National Corporation remained under the management of the same group of executives. As corporate president, Joel Schwartz continued to oversee the day to day operation of both companies. Aoki, who served as chairman of both entities, retained 51 percent of the common stock in BNC and kept about 30 restaurants in the privately held BOT. Aoki developed new concepts for the Benihana food chain but he also continued to play hard, becoming a championship-level backgammon player and setting a world record in off-shore powerboat racing. The Double Eagle V, a 400,000 cubic-foot gas balloon, displayed the Benihana logo as it became the first crewed balloon to successfully cross the Pacific Ocean, with Aoki as one of the crew members. One of Aoki’s new concepts was Benihana National Classics, a line of Chinese gourmet frozen foods, introduced in 1984 and sold in supermarkets. Chinese cuisine was chosen when the company found that Japanese food didn’t freeze well. Within a year the Classics were the best-selling Oriental frozen foods in the United States, with sales in one quarter alone reaching more than $40 million and profits climbing to over $4 million. The company’s stock took off, going as high as $21.50 in 1985. In December of that year, Restaurant and Institution magazine named Benihana of Tokyo the most popular family-style restaurant in America. At that time, Benihana of Tokyo and Benihana National together operated or franchised restaurants in 60 locations, from Seattle to New Jersey, serving a total of 25,000 customers a day. Benihana National’s frozen food success quickly attracted the attention of major food companies. When Campbell Soup and Stouffer’s began offering their own lines of Oriental frozen foods, however, Benihana couldn’t compete. The company lost $11 million on frozen foods between 1985 and 1987 and finally sold the business, for $4.5 million, to the small company that had been producing the dinners for them. Frozen food, however, was not Aoki’s only new idea. In 1985, Benihana National opened its first seafood restaurant, The Big Splash, just north of Miami. Aoki believed the sea would be the primary supplier of food in the future, and, borrowing an idea from a Malaysian fish market, came up with the concept of a seafood marketplace/restaurant. Customers could choose from hundreds of varieties of fresh seafood, decide how they wanted it cooked, and watch it being prepared. The idea was so popular initially that a second Big Splash was opened. The seafood restaurants soon experienced difficulty, however, registering losses of $2.7 million during 1987. The wide variety of options ran completely counter to the tight focus and minimal waste of the Benihana steakhouses. At the Miami location, the majority of customers were retirees who resented the high prices and preferred to eat fish they were familiar with. â€Å"All we sold was salmon and red snapper,† Aoki told Eric Schmukler in a March 1989 Forbes article. The company closed its Big Splash outlets in March 1988. The 1988 fiscal year was a hard one for Benihana, as the company recorded a loss of nearly $7 million. Despite the company’s financial problems with Classics and Big Splash, the Benihana restaurants themselves were still popular. By the end of fiscal 1989, the publicly owned Benihana National Corp. reported profits of some $1.8 million on sales of $34 million at its 20 restaurants, with Aoki’s privately-held Benihana of Tokyo taking in similar revenues. 1990-94: Making a Turnaround Rocky Aoki kicked off the new decade by opening a gallery in one of the Miami Benihana restaurants to display a portion of what was becoming known in the art world as the Rocky Aoki Collection. Having spent more than a year consolidating his diverse collections, Aoki told Antiques & Collecting, â€Å"I think it’s a natural to have a gallery here. More than 90,000 people eat in this restaurant every year; why not provide them with something beautiful to look at, not to mention buy, if they so desire.† In a 300-square-foot space that had been the restaurant’s gift shop, diners could view etchings by Icarts, lamps by Tiffany and Handel, and bronzes by Remington. The publicity about Aoki’s collection helped generate business for the restaurant, and overall company revenues continued to grow. Profits, however, were less than a million dollars a year, and BNC stock fell below $1 a share. Angry at the situation, some shareholders sued. As Marilyn Alva reported in a 1992 Restaurant Business article, the shareholders claimed Aoki and his management team were in a conflict of interest by managing the two companies. The complainants further maintained that Benihana management had misappropriated the assets of Benihana National Corporation, passing them through Benihana of Tokyo for their personal benefit. The shareholders, however, were ultimately unsuccessful in trying to take control of the company away from Aoki. Meanwhile, Benihana management took advantage of a health-conscious American public’s growing interest in Japanese food and entertainment. With the tag line, â€Å"We have been the restaurant of the ’90s since the ’60s,† Aoki and Schwartz instituted a major advertising campaign stressing the fact that Benihana had always offered healthful food. Soon afterwards, in 1993, the Atlanta Benihana of Tokyo restaurant added an 18-seat sushi bar and 35-seat Karaoke dining room to draw more customers on weekday nights. Despite the higher labor and food costs associated with sushi, the company reported an increase in beverage sales, and a lot of sampling of the $.99 sushi pieces by people waiting to eat at the traditional teppanyaki tables. Learning from its experience a decade earlier, in 1994 Benihana National Corp. decided to get into the frozen food business again. This time, however, by entering into a licensing agreement with Campbell Soup Co., the company hooked up with a major marketer rather than trying to compete with the big names. The new product was a line of frozen stir-fry kits featuring the Benihana trademark. The dinners served six people and sold for about $8.00. As Peter McMullin, an analyst with Southeast Research Partners, told Florida Review.Net, â€Å"This time the strategy makes sense because it is linking with a high profile food company to help strengthen the distribution side and offsetting the razor-thin margins of retail by manufacturing with a low cost producer like Campbell.† By the end of the fiscal year, revenues were over $70 million, with profits up 41 percent to $2.4 million. 1995 and Beyond: A New Company At the beginning of 1995, Benihana National announced it would buy Aoki’s 21 Benihana of Tokyo restaurants on the U.S. mainland, along with the U.S. rights to the Benihana trademark, for about $6.15 million. On May 16, a newly created subsidiary, Benihana Inc., acquired the BOT restaurants and, through a merger, simultaneously acquired Benihana National. BNC shareholders received one share in the new holding company for each of their shares of Benihana National. Aoki continued to serve as chairman of the new company and Schwartz as president. Benihana Inc. now owned or licensed the 43 Benihana restaurants in the continental United States along with a franchise in Honolulu. It also had the rights to develop or license Benihana restaurants in Central and South America and the Caribbean Islands. Aoki kept private his Benihana of Tokyo restaurants in Hawaii, Britain, and Thailand. During 1995, the new company took several steps to attract more customers. Benihana introduced weekend luncheon service and, following the success in Atlanta, opened sushi bars in seven locations. The company also instituted a national Karaoke contest for its patrons. In the fall, the company opened its first smaller format unit, called the Benihana Grill, in Sacramento. At 3,800 square feet, the Grill format was less than half the size of the traditional Benihana, and enabled the company to open units in smaller locations, particularly in urban areas. Schwartz had been refining this format since 1989 as an alternative to the company’s more common free-standing, special use restaurant buildings. The Benihana Grill was designed to accommodate 10 to 12 teppanyaki tables, compared to the 18 tables in the typical Benihana. Analyst Peter McMullin remarked, â€Å"Initial indications are encouraging even before the grand opening. With the lower capital costs of approximately $500,00 0 versus a stand-alone restaurant cost of $2 million, this could become an enormous growth vehicle for Benihana.† The new hours and offerings helped increase guest counts in existing restaurants by 8.7 percent and same store sales by an average of 7.7 percent for fiscal 1996. This rise, plus the addition of the Benihana of Tokyo restaurants and the new Benihana Grill, resulted in annual revenues of over $81 million. Benihana’s growth came primarily from increased traffic in its existing restaurants, and the company continued to support that strategy. Early in 1996, in an effort to gain a larger share of the ethnic market, the company launched Spanish-language television advertisements in Miami and Los Angeles. In May, Benihana kicked off a two-year, $5 million ad campaign, focusing on the entertainment value of teppanyaki cooking. â€Å"We want to bring the Benihana name to a different audience,† company president Joel Schwartz told Nation’s Restaurant News in a May 6, 1996 article. â€Å"The ads show that Benihana is a place the entire family can come to and have a good time–a place they will see the chef perform and flip shrimp.† Individual restaurants also developed innovative marketing techniques. A visit and meal at the Benihana in Bethesda, Maryland, for example, is one of the activities in the county’s social studies curriculum for third graders l earning about Japan. The company did not depend entirely on its existing restaurants for growth. During 1996, it also signed leases for several more Benihana Grills and expanded its franchise operations, including restaurants in Bogota, Columbia, and Aruba, Netherlands Antilles. Benihana’s track record of steady growth in same store sales, rising customer count, and profitability appeared to be continuing into the late 1990s as revenues for the first half of fiscal 1997 were up over eight percent from the year before. Further Reading: Alva, Marilyn, â€Å"Very Rocky Business: Aoki Besieged by Shareholder Suits,† Restaurant Business, February 10, 1992. â€Å"Benihana Buying Founder Aoki’s Units,† Nation’s Restaurant News, January 16, 1995, p. 14. â€Å"Benihana Profits Rise 67% for First Nine Months of Fiscal ’95,† Nation’s Restaurant News, February 12, 1996, p. 12. â€Å"Benihana Testing Stir-Fry Kits,† Supermarket News, October 17, 1994, p. 28.

Copyright Law and Industrial Design Essay

Introduction The history of intellectual property law represents, in its essence a bargain between the interests of society from being able to utilize and copy innovations, and literary and artistic works, and the interest in protecting the benefit to the creator so as to stimulate further such work. Enactment of copyright legislation was not based upon any natural right that the author has upon his writings but upon the ground that the welfare of the public will be better served by securing to authors for limited periods the exclusive rights to their writings. Property rights represent the principal vehicle for enabling creators and producers to appropriate the value of their efforts. Preserving a delicate balance therefore, is of paramount importance. However, intellectual property rights have, in certain circumstances, begun to overlap and provide simultaneous or sequential protection for some inventive and creative works mainly by accretion rather than design. The traditional channeling doctrines used to determine which area protects a certain interest have had their boundaries blurred, and overlapping areas has become a phenomenon, its most prominent manifestation being the overlap of protection afforded to designs under the design laws and the copyright laws. This paper, by tracing the source and genesis of the rights afforded to industrial designs, the varying nature of the protection afforded and the rationale behind it, will attempt to argue that the conceptual separation between the protectability of copyrightable works and designs necessitates a very strict exclusion of all designs or applied art to be removed from the ambit of copyright protection. By clearing up the confusion surrounding the law of development of designs and the ambiguous nature of the protection afforded which has led to the current status of overlapping protection, the paper will present an overview of its implications and defend status quo. The Origin of Design and Copyright Stemming from the age old understanding of property rights and the entitlements carved thereto, the very basis of copyright law is to allow the creator of a work the right to enjoy the fruits of his labour and derive benefit from it. The concept of limitation, however is inherent in it, and it has been universally held that the author / artist of a work cannot enjoy the monopoly forever. This concept of a limited right is of grave importance in this paper, since the development of various strands of law is crucially linked to its limitation. Copyright law then, evolved to bestow upon the creator the right to distribute, to perform, display and to prepare derivative works based upon the copyrighted work and prohibit all unauthorized, economically significant uses of copyrighted works. Copyright law has traditionally had a ‘useful article’ exception. According to the legislative history of the 1976 Copyright Act, the purpose of excluding useful articles from copyright protection was â€Å"to draw as clear a line as possible between copyrightable works of applied art and uncopyrightable works of industrial design.† The objective of excluding useful articles was fundamentally linked to the nature of copyright itself, which protected art for art’s sake, the mere expression. The distinctive philosophy of copyright law protection applied only to art, where the sole purpose of the art was its aesthetic value and was extended only gradually, and against considerable opposition, to ‘works of art applied to industry.’ The separation of ‘beauty’ from ‘utility’ was opposed on the ground that art remained art even when applied to useful objects. But the fundamental object of the design being economic aims, it only came into its own when the industrial revolution had made it possible to reproduce useful articles in series and which then assumed the eminently practical task of increasing sales of goods on the general products market. Industrial design, made for a commercial purpose, did not qualify and were always disqualified from the wide ambit of copyright protection. It was considered appropriate to treat artistic works applied to products produced in certain industries separately from other works which enjoyed full copyright protection. For the simple reason of being applied art, being embodied in a useful article and necessitating a different approach, design law evolved from copyright as an exception for artistic designs applied to specific classes of industrial goods, or goods within particular industries. In obtaining protection, the design had to satisfy the requirements of novelty, non obviousness and creativity. Essentially given as a right to protect fabric designs, the extent of protection grew until was no requirement for registration. Now, according to the Industrial Design Act, a â€Å"’design† or an ‘industrial design’ means features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye. A registered design is a statutory monopoly, of up to 25 years duration, which is intended to give protection to the aesthetic appearance, but not the function, of the whole or parts of a manufactured article. The visual impact or impression counts. The design may be applied to any of the surfaces of the article and hence, it may be the shape or surface decoration. It is the design, not the article itself which is protected by registration. Surface designs were two dimensional designs and were mostly just achieved by ornamentation and the like, and when the design involved shape and structure changes in the article, they were shape designs. To be qualified for registration, a representation of the design, a statement of novelty identifying its unique features, and the set of articles in respect of which monopoly is claimed was required to be submitted. The required level of originality for a design to qualify is disputed. While in some cases, it is only required that the design not be in existence, in other cases, creativity and aesthetic appeal was required. It would seem, however, that the latter requirement more truly reflects the incidents of the law, since the separability analysis requires that decorative features be identifiable. Design Protection: Its Rationale and Incidents Design protection law, from its very inception, attempted to provide a monopoly status to the design only with respect to a specified category of articles, and not to every object which might utilize the design. This deviation is highly significant for the purpose of this analysis, since it exemplifies one of the most fundamental distinctions between the law of design protection and copyright. From affording protection only to ornamentation of designs, the Act started to cover a new and original design for an article of manufacture having reference to some purpose of utility. The reference to ‘utiltity’ whether as an exclusionary or determinative factor in deciding legal protection for the design, play a pivotal role in the development of design law and thus, its relation and dependence upon the functional aspect of the article could not be divorced. The result of design protection to manufactured articles therefore, may be to secure important advantages in reference to a mechanical object, if these advantages should be the result directly or indirectly of the shape adopted. It is in this context that the separability analysis acquires significance. Doctrine of Separability: Unity of Art and Theory of Disocciation The mere expression of the design as an artistic work would receive protection under copyright, but where the article embodying the design did not have the sole purpose of being of aesthetic appeal alone, it became a design. Thus, only that aspect of a design which could be separated from the utilitarian aspect of the article would receive protection, otherwise the aesthetic appeal of a useful article would go unnoticed since the functionality doctrine negates the aims of copyright law. Design law protected any feature of the design which was dictated entirely by the dictates of functionality would not receive protection, since it was the creative nature of the design which was sought to be protected, and not the entire article. The unity of art theory asserts that industrial art is art; the theory of dissociation starts from the premise that industrial art is inextricably bound up with industrial products. The unity of art doctrine glossed over the affinity of ornamental designs of useful articles to industrial property, an affinity recognized by the Paris Union at the International Convention for the Protection of Industrial Property in 1883. The doctrine of separability, as developed in the context of copyright law is of great significance in this analysis. According to this, protection is afforded only to that part of the design which is separable from the utilitarian aspects of the article. When the shape of an article is dictated by, or is necessarily responsive to, the requirements of its utilitarian function, or if the sole intrinsic function of an article is its utility, the fact that it is unique and attractively shaped will not qualify it as a work of art, but if the same functionality is capable of being obtained from a different design, the design is eligible for protection. The notion that the shape of an article dictated by the requirements of its utilitarian function, should not be protectible in copyright law is accepted nearly everywhere because such protection would circumvent the strict requirements of the patent law. If there is no physical separability, the examination then moves on to whether the utilitarian and aesthetic features can be imagined separately and independently from the useful article without destroying the basic shape of the useful article. Of course, all industrial designs are â€Å"functional† in the sense that they are embodied in products that perform a function. As a matter of practical reality the design will be inexorably and intimately related to the product. The separable analysis, while useful to distinguish the actual design sought to be ornamented, cannot denigrate from the fact that the design, is meant for a specified article, and hence the protection affordable to it is intricately connected to the factum of it being embodied in an article. The Overlap Its genesis and treatment The Indian Copyright Act provides for exclusion of designs which are registrable under the Designs Act. S. 15 excludes the application of the Act to all designs registered under the Designs Act and S 15(2) states that: (2) Copyright in any design, which is capable of being registered under the Designs Act, 1911, but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person. The overlap between copyright and design protection which has caused so much confusion is intricately connected to the very nature of the rights afforded under each. The 1911 Act in the UK provided that all designs capable of being registered would be deprived of copyright. A design capable of registration, continued to have copyright protection, until the article using the design had been reproduced more than fifty times by an industrial purpose, at which point, only the protection affordable under the Registered Designs Act was applicable. However, this did include prints, which could not, rationally be said to not constitute an artistic work and hence, case law had to specify that the exclusionary clause did not include artistic works and prints. S. 52 of the CDPA, reproducing this notion is indicative of the tendency of the law to determine extent of protection based on whether or not the design was to be mass produced in a class of articles. It has also caused considerable confusion, especially with respect to whether, if an artistic design, meant solely as such, and hence eligible for copyright protection, but later reproduced in an article, would suffer the exclusions, or whether, its objective elements rendering it capable of being used in an article would bring it under the rubric of the exclusion. The scope of the design to be mass produced thus, played a great role in determining what protection it become eligible for, whether copyright or design, the latter more alike to patent protection. The point at which an object became ‘commercialised’, and part of industry, the terms and nature of intellectual property accorded to it changes. The main rationale of this exclusion was to limit the protection afforded under the copyrights subsisting in the design to the exact period of time design registration would have subsisted, and only those rights. A comparison of this development of the law with the law of patent reveals a similarity. While copyright subsisting in literary or artistic works, where the form of expression is sought to be protected for a term of life plus 50 years, articles which have utility attached to them, such as patentable innovations, receive protection for a shorter time limit, since the functional aspect of the article requires that monopolistic privileges be removed as soon as possible. In the development of design law therefore, a trend can be noticed. As long as a design was just that, an expression, copyright protection existed. Its materialization in a functional article created by an industrial process, reduced the term of monopolistic privileges granted to its creator. Thus, even if the protection was to the artistic design, its relation to the product cannot be divorced. A compromise The controversy surrounding the overlap between copyright and design protection and the issues within it stem from a basic confusion of the objectives behind both types of laws. Copyright law seeks to achieve the double objective of widest possible production and dissemination of original creative works and at the same time, allow others to draw on these works in their own creative and educational activities, through a scheme of carefully balanced property rights that still manages to give the authors and producers sufficient inducements to produce such work. The balance that copyright law seeks to achieve is based on a judgment about social benefit. To give greater property rights than are needed to obtain the desired quantity and quality of works would impose costs on users without any countervailing benefit to society. Concurrently, allowing one form of protection to expire, only for the article to claim protection under another regime would be a colourable devise to achieve the same object, a roundabout way to receive more protection that intended. It is for that reason that designs have to be clearly excluded from copyright law and the utilitarian theory seeks a middle ground between absolute ownership of intellectual property and none whatsoever. Over Protection or Under Protection? The duality of art hypothesis that ornamental designs were normally ineligible for copyright protection because their dependence on useful articles made them primarily objects of commerce and deprived them of the independent existence deemed a basic attribute of true works of art. The distinctive philosophy of protection that characterizes copyright traditionally protected only art, where the sole purpose of the art was its aesthetic value and was extended only gradually, and against considerable opposition, to ‘works of art applied to industry.’ The separation of ‘beauty’ from ‘utility’ was opposed on the ground that art remained art even when applied to useful objects. But the fundamental object of the design being economic aims, it only came into its own when the industrial revolution had made it possible to reproduce useful articles in series and which then assumed the eminently practical task of increasing sales of goods on the general prod ucts market. The industrial design is often seen as an analogue of the utility patent owing to its effects on commerce, and its legal status has been influenced to a certain degree by the characteristic principles of industrial property law. The very insistence on the seperability doctrine to afford protection to the design, reveals the importance of the utilitarian aspects in the paradigm of design law despite the repeated attempts to focus on the separable, aesthetic aspects of it. The consequence of this ‘functional’ aspect of industrial articles qualifying for industrial design protection is the limited term of protection afforded to it. No modern designer ignores the function of the article he shapes. Since the chief objective of those designs is industrial and commercial exploitation, the chief characteristic of designs and models, makes the Copyright Law hard to apply. The parallel tracks of design law and patent law cannot be avoided. The Copyright office of the U.S, until 1949, refused to give copyright protection to three dimensional shapes because it would come within the category of multiple commercial productions of applied arts, which, they held was only eligible for patent protection and resorting to the less stringent requirements of copyright went against that. The flexible treatment to improvements under patent law is not afforded to designs, and hence, the scope of innovation is restricted. Narrow scope of protection is necessary to avoid protecting style trends of which the protected design is a part. The indefinable relation between the art and its application means that copyright protection will end up removing much more than the expression, and also some forms of its application, which upsets the traditional bargain in intellectual property law. The Economic Ripple Traditionally, the right to copyright protection is premised on a claim that certain industrial designs are entitled to legal recognition as art in the historical sense. The economic repercussions of such recognition flow principally from the industrial character of the material support in which ornamental designs are embodied. The incidence of these repercussions upon any given system varies with the extent to which the claim to recognition as art is itself given effect. As copyright protection for designs of useful articles expands, the economic effects of this expansion on the general products market are counterproductive. This is just one of the effects. In general, overprotection results from the progressive monopolization of ever smaller aggregates of inventive activity, which elevate social costs in return for no clearly equilibrated social benefits. But the rescue of artistic of designs from the exigencies of patent law, were now converting copyright law into a de facto industrial property law without the characteristic safeguards of the industrial property paradigm. A significant effect of awarding copyright protection thus is the economic effect. An analogy from the law of patent proves this point. Patent doctrines such as the rule of blocking patents and the reverse doctrine of equivalents offer some protection to the developers of significant or radical improvements who can thereby allocate gains from their invention. Copyright doctrine however, extends to cover any â€Å"copy† or adaptation or alteration of the original that is nonetheless â€Å"substantially similar† to the original work. An important difference between copyright and registered designs is that the latter can be enforced against a third party who has not copied the proprietors design. The exclusive right conferred for designs was in the nature of a monopoly right, which means that it was infringed by another party who employed that design or one not substantially different from it, regardless of whether that other party copied from the owner or created his own registered design independently. The right is thus fundamentally different from unregistered design right and copyright for both of which copying is an essential ingredient for infringement. The fair – use exception which arises when a person uses copyrighted expression in a way that the law deems to be fair is indeterminate, and this characteristic of design law makes it even more difficult to apply it. Dynamic societies need small improvements and massive breakthroughs in art and technology to prosper. Yet it is difficult to develop incentives that can spur the less dramatic type of creativity without imposing crippling costs. For instance, subtle innovations usually generate small benefits that are exceeded even by the mere cost of administering a property rule. In addition, the margin of error for protecting these improvements is slim because their life span is so short. Esthetic designs and other marginal improvements, by contrast, have an optimal term of only a matter of months and a mistake that gives an additional six months of protection to designs creates a much greater distortion in the incentives for developing commercial art which is not the case in copyright. Conclusion The availability of overlapping intellectual property protection in all of its forms presents a serious threat to the goals and purposes of federal intellectual property policy and must be addressed as a single issue. The 1842 act, instead of re defining designs to prevent overlap, the definition was left broad but was subject to an express exclusion of all designs covered by the other Acts thereby necessitating interpretation of two acts, set a pattern carried through to the present day. The true scope and effectiveness of design law will depend on the extent to which the scope of protection it affords which is undermined by the concurrent availability of copyright protection for industrial art. If a country makes it easy for industrial art to qualify for copyright protection as applied art, designers will have less incentive to make use of a special design law and design protection will increasingly be characterized by the copyright approach, the harmful effects of which have been proved. Design laws, therefore, have to be structured so that obtaining copyright protection is difficult and most designs fall within their jurisdictional sweep. The legal history of industrial art in the twentieth century is an effort to establish special regimes of design protection without unduly derogating from the general principles of copyright law and laws should be structured that way. One should not forget that this theory was spawned by a false conflict between art and industry. By fighting for the artistic value of a shape, one has supposedly justified drawing into the orbit of copyright law a body of intellectual products that bear only an apparent resemblance to the creations covered by this regime. The evidence is persuasive that the costs of a property right outweigh the benefits. That judgment is reinforced by the observation that, notwithstanding the lack of protection afforded to commercial art, consumers already have an incredibly diverse selection of product designs from which to choose. The difficulties of interpretation caused by exclusions to exclusions to exclusion seem to be endemic to industrial design law, and the problem of overlap therefore has to be treated differently. Bibliography Books: P. Goldstein, Copyright (2nd edn., Vol 1.New York: Aspen Law and Business 2002). S. P. Ladas, Patents, Trademarks and Related Rights: National and International Protection (Harvard: Harvard University Press 1975). Laddie, Prescott, Vitoria, The Modern Law of Copyrights and Designs (3rd ed., Vol. 2, London: Butterworths 2000). B. L. Wadhera, Law Relating to Patents, Trademarks, Copyright, Designs and Geographical Indications (New Delhi: Universal Publishing Co. Pvt. Ltd 2004) M. Howe, Q.C, Russell, Clarke and Howe on Industrial Designs (7th edn., London: Sweet and Maxwell 2005). Articles: V.R. Moffat, â€Å"Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Protection† 19 Berkeley Technology Law Journal 1473 (2004). The article deals in great detail about the problems of overlapping intellectual property right protection. Beginning with an analysis of the process involved in affording protection to any intellectual property, the article describes the bargain that is struck between the society and the inventor / creator, for the better good of all, since providing protection incentivizes and after a certain period of time, the invention / creation is required to be relegated to public use in return for the subsisting monopoly. The article then describes how the problem of overlapping protection, how it is more be accretion rather than by design, helped along by the judiciary, the insidious influence of ever increasing demands, and goes on to characterize the problem of overlap, and suggests ways to stop it. P.K Schalestock, â€Å"Forms of Redress for Design Piracy: How Victims can use existing Copyright Law† 21 Seattle University Law Review 113 (1997). The article looks at the various forms of protection available to the designers of clothes, since the current framework of copyright laws in the U.S, outlaws all forms of protection for useful articles. The design of clothes could only be protectable so far as that design was seperable from the functional aspect of clothes, which, as the author proceeds to argue is an impossible task since clothese were inherently meant to be useful but the cut, shape and colour greatly contributed to its value as well. The author, reviewing design piracy in the clothing industry, explains how the advancement of technology has made this all the more worse. He points out how the existing framework fails to provide a remedy, and then provides suggestions and remedies whereby this lacunae in the law could be remedied. M.C. Broaddus, â€Å"Designers Should Strive to Create ‘Useless’ Products: Using the Useful Article Doctrine to Avoid Separability Analysis† 51 South Texas Law Review 493 (2009). The article deals in detail with the irony of the inability of intellectual property law to afford protection to useful articles. It deals in detail with the evolution of the separability doctrine, its variants, and the judicial treatment of the same. It starts with a brief description of the history of the development of the law of industrial designs, the lacunae that existed previously due to the refusal of copyright law to recognize the applied art in industrial articles, and the need for protection of the art in those articles nevertheless. It discusses cases in which the separability has been in question and shows how, judicial discretion in having to make this distinction is actually leading to the judiciary making decisions about what constitutes art and what does not. Hence, the article suggests some differential means of analysis to avoid this confusion. A. Muhlstein, M.A. Wilkinson. â€Å"Whither Industrial Design† 14 Intellectual Property Journal 1 (2000). A seminal article on the development of the law of industrial designs, it provides a thorough overview of the genesis of the law, problems faced in its historical development and its current status. It situates the problem of overlap in the historical context and demonstrates linkages. The article does a comprehensive study of the current legal systems in place to protect industrial designs, identifies the elements within them and situates them in the larger paradigm of intellectual property law to understand the origin of the rights better. It also briefly survey the international framework in place to deal with industrial designs, the compromises sought to be reached and the harmonizing measures so far undertaken to afford protection to industrial designs. Dr. Ramesh, â€Å"Registration of Designs: Need a Fresh Look† 32(1&2) Indian Bar Review, 83 (2005). The article does a brief review of the need to protect industrial designs, about the intrinsic value of a useful good which also looks attractive and appealing and the economic benefits to be derived from it. It gives a historical perspective of the development of design law and the requirements of the law as it currently stands. It gives a short description of the application procedure, and then, by drawing a linkage between the objective of the law and the rights given it reviews the remedies for infringement and analyses whether they are adequate or not. It also points out some flaws in the existing design protection framework in India and makes a very good argument for such flaws to be corrected. S.H.S. Leong, â€Å"Protection of Industrial Designs as Intellectual Property Rights† Journal of Business Law 239,243 (2003). The article essentially deals with the development of the law of industrial designs in Singapore, and it does this by comparison with the English Law. It gives a short description of the transitory changes from the 1842 Act to the 1911 Act, then from the 1956 Act to the 1976 Act in Copyright, and demonstrates how needs of the particular time resulted in the changes embodied in these different laws. It also talks about the necessity of laws like the Unregistered Designs Act, Community Designs Act etc, as available in Europe, so that designs which are not judged to be ‘aesthetically appealing’ but which nevertheless contribute to the value of the product, are protected. It discusses the possibility of shapes being protected under trademark law and patent law, and concludes that a separate law to deal with designs is very necessary. E. Setliff, â€Å"Copyright and Industrial Design: An â€Å"Alternative Designs Alternative† 30 Columbia Journal of Law and the Arts 49 (2006). The article, by a brief review of the historical development, points out how crucial the separability doctrine has become, due to the traditional reluctance of Court to recignise applied art as having artistic value. The article argues vehemently at such an assumption. It argues that industrial design actually embodies aesthetic expression to a much greater extent than function. Although its primary purpose might have been to make the products of industry more commercially successful by changing, and even disguising, their aesthetic appearance, its artistic value cannot be denigrated from. It critics some of the literature thus far which celebrates the lower quality of the work in designs, and explains why the separability of the design has become problematic specially because it depends on the court’s subjective notion of what constitutes â€Å"art† who go by traditional choices and the author demonstrates the dangers of this approach. G. Scanlan, S. Gale, â€Å"Industrial Design and the Design Directive: Continuing and Future Problems in Design† Journal of Business Law 91 (2005). This article examines the impact of the overhaul of EC industrial design law on English intellectual property law. It starts out by considering the policy behind the Council Directive. It traces all laws relating to protection of industrial designs in the European context and reviews as to how the directive changes it. It reviews changes to the definition of design, the requirements for novelty and individual character, the relationship between copyright, registered and unregistered designs, the differing treatment of works of artistic craftsmanship and artistic works per se, the treatment of applied designs and the abolition of the compulsory licence regime. On the whole, although the directive, in achieving its stated purpose of harmonizing laws, was forced to be selective in its changes, it nevertheless has a much desired effect. J.H. Reichman, â€Å"Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976† Duke Law Journal 1143 (1983). This article attempts to study the complex interactions of the different branches of intellectual property law that seek to regulate the degree of protection to be accorded ornamental designs of useful articles. A circular pattern, the article argues, can be discerned in the treatment of these designs in both foreign and domestic law. The tendency of industrial property law to breed still further instances of underprotection or overprotection then fosters renewed pressures for the regulation of industrial art within the framework of the laws governing literary and artistic property. It uses an extremely detailed analysis of the law in the U.S.A to explain the disjunct. The article also compares the tradition of protection of industrial designs in France, German, the Beneleux countries, and provides a thorough overview of the variety of doctrines that have had a role to play in the current state of law relating to designs. It also, looks at policy objectives, the commercial features of the current legal status, some amendments proposed and the effect of those amendments as well. Umbreit, â€Å"A Consideration of Copyright† 87 University of Pennsylvania Law Review 932 (1939) A foundational work on the development of copyright law, the article gives a very detailed analysis of the components of the protection afforded by copyright, and what works would necessarily qualify for the protection. It focuses extensively on the idea / expression dichotomy in the law of copyright and demonstrates how this demarcates the boundary of copyright protection. The elements of copyright, as described in this article, is highly demanding of the qualities of originality and creativity, and it traces the link from the policy objectives of affording any kind of protection to such artistic work at all, to the categories of creative work considered generally to be within its scope. C. Thompson, â€Å"Not such a Crafty Corkscrew? Sheldon v. Metrokane and the Status of ‘Industrial Designs’ as Works of Artistic Craftsmanship Under Australian law† 26(12) European Intellectual Property Rights Review 548 (2004). A case comment on Sheldon v Metrokane, the article gives a definitive analysis of the exact link between the utilitarian aspects and the design aspects of an article. While the protection is sought to be afforded to the design aspects alone, how this conceptual separability was treated in Sheldon was reviewed. The article also cited some interpretations of the case, which, it viewed as misplaces and suggested a differing analysis of the opinion. S.W. Ackerman, â€Å"Protection of the Design of Useful Articles: Current Inadequacies and Proposes Solutions† 11 Hofstra Lew Review 1043 (1983). It illuminates the policies underlying copyright law, and argues that protection should be extended to the design of useful articles. It contrasts the extent of protection provided by the copyright system with that of the patent system and by a comparison of the amount of effort required on the part of the inventor / author to trigger the protection, conludes that such protection is hardly sufficient. The design of useful articles seems to fall in between these systems, and hence is left largely unprotected.It surveys case law, the danger of judicial discretion and suggests a hybrid theory of patent and copyright to protect designs sufficiently and justifiably which encourage the creation of designs by providing rights to protect against commercial exploitation but not extending those rights to the utilitarian features of the protected article. J.C. Kromer, â€Å"Claiming Intellectual Property† 76 University of Chicago Law Review 719 (2009). The article explores the claiming systems of patent and copyright law with a view to how they affect innovation. The object of this article is to trace the law relating to improvements, in juxtaposition with the stated objective of law of intellectual property rights to achieve the maximum social good. The article approaches the subject from the inventor’s perspective and examines whether the current system of protection of improvements in speech is fair. While patent requires patentees to articulate by the time of the patent grant their invention’s bounds, thus effectively allowing all improvements not within such bounds, copyright law only requires the articulation of a prototypical member of the set of protected works. The law relating to improvements in designs also, follows a similar pattern. All substantially similar works, therefore, could be held as infringement. Copyright therefore, allows far less improvement and deviation from the protected product as allowable than patent, where, anything outside the specified bounds was allowable. J.P. Mikkus, â€Å"Of Industrious Authors and Artful Inventors: Industrial Works and Software at the Frontier of Copyright and Patent Law† 18 Intellectual Property Journal 174 (2004). The article first examines the protection granted by copyright law for functional works typically found in an industrial environment. The article then explores the challenges of copyright protection for the non – literal aspects of computer software and problems faced by inventors and software developers when obtaining patent protection in relation to software. The article criticizes current status of law relating to copyright and patents, in that creative work related to industrial purposes does not get adequate protection in either of the regimes since they show limited openness to intangible products of industry. The critique thus, necessarily involves analysis of the level of originality that an invention / work is required to possess to qualify for protection and exposes anomalies in that regard. W. M. Landes, R. A. Posner, â€Å"Indefinitely Renewable Copyright† 70 University of Chicago Law Review 471 (2003). The article examines the economic rationale of limiting copyright and patents. While the nature of patents is such that the expiration of the rights is a necessary evil to increase the social good, copyright, the article argues, should be afforded for an even longer period of time in the absence of any strong reason not to. In this context the article makes a difference between perpetual copyright and indefinitely renewable copyright. Although the latter concept could turn into the former under very specialized conditions, the article argues that the resulting benefit accruing to the author / artist is much greater than societal loss, and attempts to prove this hypothesis by some statistical evaluations. It points out that works in the ‘public domain’ do not always get negatively affected when copyright protection is expanded, since the greater incentive would spur further creativity. T. Scassa, â€Å"Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition† 1 University of Ottawa Technology Law Journal 51 (2004). This article deals with the problem of protection afforded to utilitarian, creative works from a competition perspective. It examines the concept of â€Å"originality† in light of the shifting purposes of copyright law and of the historical relationship of utilitarian works to copyright law. It emphasizes on the overwhelming role that then judiciary in Canada has played in allowing copyright protection for utilitarian works, and this has resulted in a constant swing in the status of the law. It argues that, protecting utilitarian works by copyright has reusled in a loweing of the originality creativity threshold in copyright, which in turn has changed the character of copyright law in some instances and hence creates competition distortions. The problem the article argues, lies in the tension between copyright and unfair competition, primarily in relation to utilitarian works and this results in counterproductive pressures. P. Borderland, â€Å"Where Copyright and Design Patent Meet† 52 Michigan Law Review 33, 43 (1953). This article deals with the fundamental conflict that the protection of industrial artistic design embodies in the paradigm of the law of intellectual property rights. It points out that copyright and patent are basically supposed to protect very different things.The concept of industrial designs, thus, creates an overlap leading to a borderland issue between copyright and patent areas. The paper explores the issues within this boundary confusion, giving attention to the policy considerations involved and attempts to give suggestions towards drawing a sharper boundary between the two. The article theorises that in such a hypothesis, designs would fall more into the realm of patent than copyright, although having unmistakable copyright features. J.H. Reichman, â€Å"Legal Hybrids between the Copyright and Patent Paradigms† 94 Columbia Law Review 2432 (1994) A detailed and comprehensive review of the development of law of intellectual property, the article describes the bargain that is truck in both patent and copyright paradigms and the delicate balancing of interests sought to be achieved. It uses the Paris and Berne Conventions as a starting point, and, working backwards from there demarcates the area of copyright and patent laws. The most prevalent of the hybrids between the two is the existence of commercial designs, and by a thorough analysis of the objectives of law of intellectual property rights, the rights that can be afforded to be protected, concludes that design protection does not fall seamlessly into the copyright paradigm. In this context, it also talks about the law relating to improvements, the necessity of the law, problems facing it and possible solutions. P.J. Saidman, â€Å"The Crisis in the Law of Designs† 89 Journal of the Patent and Trademark Office Society 301 (2007). The article does a very thorough analysis of the functionality doctrine which has led to so much confusion. Firstly, it attempts to dispel some misconceptions, such as the allegation that artistry must necessarily be useless to qualify for copyright protection. Commenting on the lacunae in the current structure of design laws, the article states that the judicial trends in determining whether or not the functionality and separability test are fulfilled has resulted in the meager forms of protection available to industrial designs weaker than ever. The article suggests that the judicial principle currently in existence in the U.S are flawed, operating upon a narrow understanding of copyright law, and by a comparison with the European system, advocates that the system be employed in the U.S as well. M.A. Lemley â€Å"The Economics of Improvement in Intellectual Property Law† 79 Texas Law Review 989 (1997). This article deals with the crisis in intellectual property law of attempting to protect improvements while discouraging imitation. The law must distinguish between improvement, a necessary part of innovation, and generally to be encouraged, and imitation, which is generally considered both illegal and even immoral. This distinction, the article points out, is not easy to make, but it is critical to achieving the proper balance of intellectual property rights. Allowing too much imitation will stifle the incentives for development and commercialization of new products. Discouraging improvements on the other hand will freeze development at the first generation of products. The article carries out a thorough economic analysis of the issues involved, and proposes alternative models to make the boundary between imitation and improvement clearer and leave less to the discretion of the courts. N. Snow, â€Å"Proving Fair Use as a Burden of Speech† 31 Cardozo Law Review 1781 (2010). The article deals with the fair use exception in copyright law. It traces the origin of the exception in copyright law, and explains the problems that the flexible doctrine is fraught with. Through a detailed analysis of case law, the article points out the extent of judicial discretion that the doctrine allows. The article evaluates the fair use exception in the context of free speech, and argues that the current judicial trend of requiring defendants to prove that they had used material which were not protected in their expres sion is chilling free speech. G.N. Magliocca, â€Å"Ornamental Design and Incremental Innovation† 86 Marquette Law Review 845 (2003). This article makes an interesting study of the origin and development of design protection law, it analyses the reasons for its slow advancement, the initial reluctance, the controversies and borderline issues that has surrounded the law. Commercial artistry, thus, was more of a problem than it was worth, leading to its neglect for nearly 200 years. The article provides an overview of the political scenario which also created difficulties, deeming designs to be part of the public domain. This Article concludes that there are sound public policy reasons against extending a property right to most commercial art and explores other ways to promote design innovation and since commercial designs occupy a unique position in the law sitting at the confluence of patent, copyright, and trademark doctrine, the article suggests that an ideal solution would require a revamping of the entire existing structure going towards a unified picture of intellectual property law. It also concludes that the economic costs with giving more protection to designs far outweighed the benefits. Table of Cases English Cases Dastar Corp. v. Twentieth Century Fox Film Corp The plaintiff sought trademark protection for its World War II video series that had been, but was no longer, protected by a copyright. The Court denied the trademark claim, in part because allowing trademark protection in this case would conflict with copyright law, creating a species of perpetual copyright. The Court termed this perpetual protection a â€Å"mutant† copyright and held that to permit trademark protection following the expiration of a copyright would infringe upon the public’s â€Å"right to copy† an expired copyright. The Court made an analysis of the bargain that is involved in the protection of any intellectual property right and held that allowing such mutation from one form of intellectual property protection to another would completely defeat the very purpose of the bargain and become counterproductive. Millar v. Taylor 98 Eng, Rep. 201, 4 Burr. 2303 (K.B. 1769). This was one of the first judgments concerning copyright in the history of English law. It concerned infringement of the copyright on James Thomson’s poem, â€Å"The Seasons† by Robert Taylor, and the booksellers won a favorable judgment. The judgment is significant for its recognition of property rights in a literary work for the first time. Sheldon and Hammond Pty Ltd v. Metrokane Inc [2004] F.C.A. 19. After the expiry of Le Creuset’s patent for a lever-action corkscrew, Metrokane engaged a designer to design a new corkscrew with the mechanics of le creuset but with greater aesthetic appeal, and beauty resulting in the rabbit corkscrew. The case involved a challenge of copyright infringement of Metrokane’s modified model,which they alleges was artistic craftsmanship for which drawings existed. The case is significant for its ruling that, even though some beauty was added to the corkscrew by fashioning a new encasement, the primary purpose remained commercial and hence protection could not be obtained. Only the encasement was attractive, and although conceptually separable, the good relied on the mechanism which was in the public domain. Copyright protection to the entire corkscrew, was therefore, denied, since the encasement alone did not qualify for protection due to the design copyright overlap. Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (2d Cir. 1980). A jewelry designer obtained copyright registrations for a line of decorative belt buckles inspired by artistic works. The designs became successful and were eventually copied by another company.The designer sued for copyright infringement and the company countered with the argument that the belt buckles were not appropriate copyrightable subject matter because they were useful articles. The Court used the separability doctrine to award in favour of the plaintiff. It came up with the novel concept of focusing its analysis on the â€Å"primary† and â€Å"subsidiary† portions of the useful articles and held that since they were conceptually separable, in that the primary ornamental aspect of the buckles is conceptually separable from their subsidiary utilitarian function, it was entitled to protection. PHG Technologies, LLC, v. St. John Companies 459 F.Supp.2d 640 (2006). At issue in this case were design patents claiming an ornamental design for a label pattern for a medical label sheet. The Court replaced its own prior test for functionality with a new one which requires a court to assess the utility of the proffered alternative designs and determine whether the chosen design best achieves the functional aspects of the article. If it does, then presumably the design choice was made for functional reasons, and any resulting design patent is invalid. In other words, the designer is penalized in the event that their best design choice also happens to lend itself to even marginally increased utility over the design alternatives. The final verdict went againt the plaintiffs in this analysis. Indian cases Samsonite Corporation v. Vijay Sales 73 (1998) DLT 732. The case concerned the alleged infringement of the plaintiff’s design rights in suitcases. The plaintiff alleged that one series of suitcases had been specially designed and surface embellishment chosen for the System 4 Range. The plaintiff’s claimed copyright in the drawings and said that the defendant, stocking a similar type of suitcase from VIP, had infringed upon the copyright and had indulged in the tort of passing off. The court however, first ruled that if any intellectual property subsisted in the cases, it was in the nature of a design right, taking note of S. 15 of the Copyright Act. Secondly, the Court held, enough identifying factors had been used with the series for a normal public acquainted with two famous brands to be impressed by the difference, and hence passing off could not also be claimed. Microfirms Inc. v. Girdhar and and Co and Ors 128 (2006) DLT 238 The plaintiff in this case claimed copyright infringement in respect of designs on the upholstery manufactured and marketed by the plaintiff. An allegation of copying and of passing off was also made. The court rules that, a requirement of registration under the deigns act did not preclude the protection of copyright. If design law was not applicable, civil remedies through copyright would still be available normally. But in this case, since the design’s attractiveness derives from the article in which it is embodied, copyright protection could not be afforded, and S 15 of the Copyright Act expressly delegated designs capable of registration to the area of the design act. Hence, the claims could not stand, since no copyright subsisted. AGA Medical Corporation v. Mr. Faisal Kapadi and Anr 103 (2003) DLT 321. The plaintiff in this case was a pioneer in trans cathartic technologies. Several drawings made for the manufacture of some cathartic devices were registered under copyright in the U.S. The defendant here was alleged to have attempted passing off, and releasing brochures depicting the exact same product using the exact same shape. The Court ruled against the plaintiffs, finding that even if copyright did subsist in the drawings, the minute they were converted into three dimensional products they lost that right by virtue of S. 15 of the copyright Act. The difference between two dimensional and three dimensional reproduction was elaborated on, and the Court gave a very definitive analysis of S. 15(2) and rules that the plaintiff did not have copyright in the drawings, and since the three dimensional objects could not be said to completely copy the plaintiff’s production, no right was infringed. ——————————————– [ 2 ]. P. Goldstein, Copyright 1:35 (2nd edn., Vol 1.New York: Aspen Law and Business 2002). [ 3 ]. Ibid at 1:44. [ 4 ]. V.R. Moffat, â€Å"Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Protection† 19 Berkeley Technology Law Journal 1473, 1474 (2004). [ 5 ]. Millar v. Taylor 98 Eng, Rep. 201, 4 Burr. 2303 (K.B. 1769). [ 6 ]. Supra note 1 at 1:10. [ 7 ]. P.K. Schalestock, â€Å"Forms of Redress for Design Piracy: How Victims can Use Existing Copyright Law† 21 Seattle University Law Review 113, 117 (1997). [ 8 ]. M.C. Broaddus, â€Å"Designers Should Strive to Create ‘Useless’ Products: Using the Useful Article Doctrine to Avoid Separability Analysis† 51 South Texas Law Review 493, 494 (2009). [ 9 ]. S. P. Ladas, Patents, Trademarks and Related Rights: National and International Protection 828 – 35 (Harvard: Harvard University Press 1975). [ 10 ]. A. Muhlstein, M.A. Wilkinson. â€Å"Whither Industrial Design† 14 Intellectual Property Journal 1, 10 (2000). [ 11 ]. Ibid at 11. [ 12 ]. 35 U.S.C.  § 171 (1976). [ 13 ]. First copyright act passed in 1709, and in 1787, the first designs act which was passed aimed to give very little copyright protection to those engaged in the arts of designing clothes and those who designed or procured new and original designs for these types of goods obtained the sole right of reprinting them for two months. The protection of designs was considered to be a part of copyright. [ 14 ]. Dr. Ramesh, â€Å"Registration of Designs: Need a Fresh Look† 32(1&2) Indian Bar Review, 83, 85 (2005). [ 15 ]. The designs covered during the historical development of the law of designs were of three types: Pattern or print to be worked on or worked into a tissue or textile fabric, modeling, casting, embossment, chasing, engraving or any other kind of impression or ornament, shape or configuration of any article of manufacture. Design law therefore, sought to protect both shapes and surface decoration. [ 16 ]. E. Setliff, â€Å"Copyright and Industrial Design: An †Å"Alternative Designs Alternative† 30 Columbia Journal of Law and the Arts 49, 61 (2006). [ 17 ]. S.W. Ackerman, â€Å"Protection of the Design of Useful Articles: Current Inadequacies and Proposes Solutions† 11 Hofstra Lew Review 1043, 1061 (1983). [ 18 ]. S.H.S. Leong, â€Å"Protection of Industrial Designs as Intellectual Property Rights† Journal of Business Law 239,243 (2003). [ 19 ]. Supra note 16 at 1053. [ 20 ]. Supra note 9 at 18 [ 21 ]. Supra note 15 at 52. [ 22 ]. There were many who had vested interests in the system which would afford some protection for industrial designs against copyists. The result was that when the Copyright, Designs and Patents Act was passed in 1988, an attempt was made to draw a boundary between copyright and registered designs and to exclude functional designs from copyright protection, but also a new type of monopoly, design right was created. It covers functional designs and was reminiscent of the design protection for articles having some purpose of utility. [ 23 ]. Laddie, Prescott, Vitoria, The Modern Law of Copyrights and Designs 1891 (3rd ed., Vol. 2, London: Butterworths 2000). [ 24 ]. Mazer v. Stein, 347 U.S. 201 (1954) [ 25 ]. Supra note 6 at 117. [ 26 ]. G. Scanlan, S. Gale, â€Å"Industrial Design and the Design Directive: Continuing and Future Problems in Design† Journal of Business Law 91,97 (2005). [ 27 ]. J.H. Reichman, â€Å"Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976† Duke Law Journal 1143, 1181 (1983) [ 28 ]. K.B. Umbreit, â€Å"A Consideration of Copyright† 87 University of Pennsylvania Law Review 932, 933 (1939); [ 29 ]. Supra note 26 at 1177. [ 30 ]. PHG Technologies, LLC, v. St. John Companies 459 F.Supp.2d 640 (2006). [ 31 ]. 21 Fed. Reg. 6024 (1956) repealed, 43 Fed. Reg. 966 (1978), 37 C.F.R. 966 (1978) [ 32 ]. C. Thompson, â€Å"Not such a Crafty Corkscrew? Sheldon v. Metrokane and the Status of ‘Industrial Designs’ as Works of Artistic Craftsmanship Under Australian law† 26(12) European Intellectual Property Rights Review 548, 554 (2004). [ 33 ]. Sheldon and Hammond Pty Ltd v. Metrokane Inc [2004] F.C.A. 19. [ 34 ]. Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (2d Cir. 1980). [ 35 ]. Supra note 25 at 94. [ 36 ]. S 22(1) provided that when a design was registered, it would not be an infringement of the corresponding copyright to do anything which was an infringement of the design registration, or, after it expired, would have been if it had not expired. [ 37 ]. B. L. Wadhera, Law Relating to Patents, Trademarks, Copyright, Designs and Geographical Indications 491 (New Delhi: Universal Publishing Co. Pvt. Ltd 2004). [ 38 ]. Supra note 22 at 1910. [ 39 ]. M. Howe, Q.C, Russell, Clarke and Howe on Industrial Designs 238 (7th edn., London: Sweet and Maxwell 2005). AGA Medical Corporation v. Mr. Faisal Kapadi and Anr 103 (2003) DLT 321. [ 40 ]. Supra note 16 at 1044: Microfirms Inc. v. Girdhar and and Co and Ors 128 (2006) DLT238 [ 41 ]. Supra note 38 at 259. [ 42 ]. J.C. Kromer, â€Å"Claiming Intellectual Property† 76 University of Chicago Law Review 719, 731 (2009). [ 43 ]. J.P. Mikkus, â€Å"Of Industrious Authors and Artful Inventors: Industrial Works and Software at the Frontier of Copyright and Patent Law† 18 Intellectual Property Journal 174, 194 (2004). [ 44 ]. Copyright law presupposes that, absent subsidies, creators will invest time and resources only if assured of property rights that will enable them to control and profit from it, but it also recognizes that creative efforts necessarily build on the creative efforts which precede them, and hence must be allowed to draw on copyrighted works for inspiration and education. [ 45 ]. Supra note 1 at 1:40. [ 46 ]. Dastar Corp. v. Twentieth Century Fox Film Corp 539 U.S. 23 (2003). [ 47 ]. W. M. Landes, R. A. Posner, â€Å"Indefinitely Renewable Copyright† 70 University of Chicago Law Review 471, 475-76 (2003). [ 48 ]. T. Scassa, â€Å"Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition† 1 University of Ottawa Technology Law Journal 51, 60 (2004). [ 49 ]. Supra note 8 at 37. [ 50 ]. Supra note 27 at 935. [ 51 ]. Supra note 26 at 1178 [ 52 ]. Supra note 7 at 493. [ 53 ]. P. Borderland, â€Å"Where Copyright and Design Patent Meet† 52 Michigan Law Review 33, 43 (1953). [ 54 ]. J.H. Reichman, â€Å"Legal Hybrids between the Copyright and Patent Paradigms† 94 Columbia Law Review 2432, 2463 (1994): Samsonite Corporation v. Vijay Sales 73 (1998) DLT 732. [ 55 ]. Supra note 26 at 1143. [ 56 ]. Supra note 53 at 2504. [ 57 ]. Supra note 26 at 1160. [ 58 ]. Supra note 42 at 193. [ 59 ]. M.A. Lemley â€Å"The Economics of Improvement in Intellectual Property Law† 79 Texas Law Review 989,996 (1997). [ 60 ]. P.J. Saidman, â€Å"The Crisis in the Law of Designs† 89 Journal of the Patent and Trademark Office Society 301, 310 (2007). [ 61 ]. Supra note 38 at 73. [ 62 ]. N. Snow, â€Å"Proving Fair Use as a Burden of Speech† 31 Cardozo Law Review 1781, 1786 (2010). [ 63 ]. G.N. Magliocca, â€Å"Ornamental Design and Incremental Innovation† 86 Marquette Law Review 845, 848 (2003). [ 64 ]. Supra note 3 at 1476. [ 65 ]. Supra note 15 at 53. [ 66 ]. Supra note 59 at 313. [ 67 ]. Supra note 26 at 1160. [ 68 ]. Supra note 62 at 847. [ 69 ]. Supra note 38 at 270.

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Case study Coursework Example | Topics and Well Written Essays - 2000 words - 3

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Proposal for purchasing new computers Case Study

Proposal for purchasing new computers - Case Study Example The new monitor has a wider screen than the older one and is very sleek which helps in saving the space on employee’s desk for other purposes. The new monitor enables employees to work on more than one application and window at a time and the speed of shifting from one window to another is even quite high which saves time. The new monitor is produced from LED technology which is energy efficient and will help the company in saving money in form of energy. The new CPUs (Central Processing Units) can operate on both Windows 7 and Widows 8, these windows provide new features to employees which will assist them in creating spreadsheets and conducting other operations related to the accounts department. These new Windows operate a much higher speed as compared to the obsolete ones which are running on Windows XP. These new computers have enhanced security systems which safeguards the work conducted by the employees of the accounts department and fights viruses and spyware issues. HP Business Desktop Pro 6300 B5N09UT Desktop Computer Intel Core i3 i3 2120 33GHz Micro Tower by Office Depot Officedepot.com (2012a) HP Business Desktop Pro 6300 B5N09UT Desktop Computer Intel Core i3 i3 2120 33GHz Micro Tower by Office Depot. [online] Available at: http://www.officedepot.com/a/products/614333/HP-Business-Desktop-Pro-6300-B5N09UT/#firstTab [Accessed: 27 Dec 2012]. Samsung S23B300B 23 Widescreen LED Backlit Monitor Glossy Black by Office Depot Officedepot.com (2012b) Samsung S23B300B 23 Widescreen LED Backlit Monitor Glossy Black by Office Depot. [online] Available at: http://www.officedepot.com/a/products/281614/Samsung-S23B300B-23-Widescreen-LED-Backlit/#firstTab [Accessed: 27 Dec

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Hagia Sophia and Pantheon Essay Example | Topics and Well Written Essays - 2500 words

Hagia Sophia and Pantheon - Essay Example However, I was pleasantly surprised by the Apse mosaics within the building that depicted Biblical scenes. Mosaic art gained appreciation in my mind when I observed the Apse mosaics closely when previously mosaic art held no beauty for me. The most important feature in the interior of the building that appealed to my eye was the dome that rests on four concave triangular pendentives. It is because of these pendentives that the rectangular base is transformed to a circular dome as the building rises. One would expect the pendentives to serve only the practical purpose but when I observed the structure of these pendentives, it allowed me to appreciate the beauty of the architecture. The pendentives are both awe-inspiring as well as practical. Even without the pendentives, the beauty of the dome will still be maintained due to the presence of the forty windows that the architects of the original dome envisioned when creating the dome. The presence of these windows has allowed for a good play of light within the internal structure. I feel that without the dome, Hagia Sophia would not have gained such popularity among modern artists and architects. Pantheon is a building located in Rome, Italy that recounts the brilliance of Roman art and architecture in this age. The Pantheon served as a temple for the Romans and featured all the Roman Gods at different points of the building. The building is a treat in itself and observing the building from the front, with its Corinthian columns, I failed to envision the dome within the building despite having read extensive literature on the building. However, the east of side of the building prominently displays the rotunda. When entering into the building through the Corinthian columns, I felt that I was entering history. The high columns further strengthened these feelings as I realized that I was entering something majestic. This was a place where our ancestors prayed for successful lives, healthy sons and good produce. Howev er, looking at the building, I did not believe that this building was as old as the Roman age, given its condition despite the years. The most beautiful aspect of the building for me was the dome and the oculus in the interior of the building. Standing directly beneath the oculus and looking up gives one a feeling of being engulfed in the majesty of Roman architecture. Pantheon for me was Roman architecture in its prime. The vaulted arches of the dome have inspired many architects since they have been created but none have been able to match the brilliance of the Pantheon. It is not just the arches that catch the eye of the viewer. The architects of Pantheon have also been able to play with light using the circular structure of the dome. However, they have done this by using the top of the dome. The oculus allows light to shine on part of the vaulted arches and through the direction of the light, the Romans were also able to tell time. Combining the practical aspect with the beauty of the building is one of the most beautiful arts of the Romans . Reflection Assignment: Islamic Advancements and Achievements Muslim advancement in mathematics and architecture inspired many other cultures that came in contact with it. One of them was Renaissance culture that took good advantage of the Muslim presence in Spain to learn from one the most developed cultures of that

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Tomb Raider Movie Essay Example for Free

Tomb Raider Movie Essay We will first talk about stereotyping in this movie. There are many portrayals of groups of people in the movie. Let us first consider Illuminati, are they real? Illuminatis are the people of light. Lara’s father who were with the illuminatis have figured out a danger that is about to come by the eclipse which will culminate the planetary alignment which only happens every 5000 years. Lara through her dreams discovered the secret of the clock which her father has concealed for many years. The clock is the key which will unlock the hiding place of two pieces of a sacred icon. This is the magical triangle, â€Å"The triangle of light. † The triangle was forged from metal found in the crater of a meteor that had fallen to earth at the exact moment of the previous alignment of the nine planets. The people of the light built a great city in this crater where they worshipped the triangle for its ability to control time. It gives its possessor a power that could be used for good or great evil. An abuse of this power led to the destruction of the city. To be sure no man would ever again wield this power they split the triangle into two pieces and hid them at the opposite ends of the earth. Her father reminds her of temple along the ancient Khmer trail in Cambodia where a Jasmine flower can only grow to find the entrance to the tomb of the Dancing light where the first half of the triangle is hidden. The illuminatis will reunite the two halves of the triangle. That portrays groups of people nowadays who believe in ancient beliefs. But there are theories in the real world regarding the existence of illuminatis. However it differs in the illuminati portrayed in the smovie. From wikipedia, â€Å"it refers to a purported conspiratorial organization which acts as a shadowy power behind the throne, allegedly controlling world affairs through present day governments and corporations, usually as a modern incarnation or continuation of the Bavarian Illuminati. In this context, Illuminatis are often used in reference to a New World Order (NWO). Many conspiracy theorists believe the Illuminati are the masterminds behind events that will lead to the establishment of such a New World Order. Confusing the issue further is the fact that there are also several modern fraternal groups which include the word Illuminati in their names. † I have also remembered some similar portrayal of this group in Mel Gibson’s â€Å"Conspiracy Theory. † If we will try to establish a connection between illuminati portrayed in the movie, and the one defined in Wikipedia, we can conclude that there are similar features of the two. They both put their will into actions whenever they can. So is there any hidden group behind the oil price hike? How about behind the global business market, the government, and other institution? Perhaps there are illuminati people playing behind the economic crisis. It is absolutely a very terrifying truth if they really exist. Whether it is a fiction or not, we are somehow sure that opportunists do exist. Another group of people are shown in one particular scene of the movie where a bidding auction was held. Bidders were putting millions for an auctioned product. They do exist in real life. These people are willing to waste large amounts of money in exchange for some goods. The worst fact is that most of being auctioned is ancient artifacts. These artifacts are supposedly symbols of cultures and tradition. Lara who arrived in the auction met an old friend named Alex West. Alex spoke about Lara’s disguise as a photojournalist, and Lara in return mentioned Alex disguise as an archeologist. Lara mentioned the term â€Å"business†. That was definitely true; they were all talking about their own business interest. Lots of people around are willing to risk many things just to get what they wanted. Despite the fact that some people spent most of their times digging for money to survive everyday, it is very sad to think that these types of people manage to do biddings. The woman as an object of sexual desire The movie shows the fashionable woman, and man’s dream woman. We saw Lara wore tight full body outfits. That is where Angelina fits very well, she has very deceiving lips plus those lovely eyes, perfect body curves which is fits right to the character of Lara. She is wearing a sleeveless shirt showing her attractive shoulders. Her provocative curves – chest, waist, and legs was indeed clearly noticeable during the whole movie. There was a shower scene who took almost 15 seconds which is very deceiving. That scene was actually giving viewers a break from action pack thrills during the whole movie. Perhaps the producer of the movie have seen how women are behaving today – more aggressive to sex, and self expression when compared to the past. Mulvey believes â€Å"†¦ that the female body operates as an eroticized object of the male gaze and the fetishistic and scopophilic pleasures which this provides for the male viewer† (Mulvey). I believe that was one of the main reasons why male viewers love this movie. Women and Modesty The movie has also given a punch line about woman’s modesty. In one particular scene from the movie, Hillary, Lara’s butler said â€Å"A lady should be modest. † But does modesty only apply to women? Does it excuse men? Let me remind you that we all have our freedom of making our own choice. Does the privilege of choice granted only to men? No, it is all granted for us who are capable of making decisions. We all have to give due respect for that. Modesty is not just an issue with women. Wollstonecraft wrote in his book titled ‘A Vindication of the Rights of Women,’ that â€Å"Modesty, in the latter signification of the term, is that soberness of mind which teaches a man not to think more highly of himself than he ought to think, and should be distinguished from humility, because humility is a kind of self-abasement. † The author is trying to address that modesty is â€Å"not a sexual virtue. † It doesn’t care whether we are female or if we are males. I believe that, as human beings, whether of opposite sex, we all have the same needs. If you were able to notice, majority of the casts of the movie were males, but were underrated due to Lara’s exceptional performance. Lara’s butler is a guy named Hillary. Is this an issue of masculinity? The butler is the one who is taking care of Lara. That is one form of modesty. That is no point of discrimination. In real life it did exist. If men can do heavy works, the more he can for easy task like that. It is unfair to tell any woman to behave. Whether this brought up an issue of a must Modesty for women, the most important point is â€Å"respect†. If we will not respect each one of us especially the women, there will be more violence and brutalities against women. Therefore, modesty is not only a must for woman, but for men also. A woman’s strength The movie opens up the question – can a woman act like a man? From the beginning to the end, Lara did many terrifying stunts and she did carry a gun. She is very sharp in shooting in her target. In all scenes of the movie, she underrated male characters in terms of stunts. She swings from ropes to ropes, fought with a robot who she regularly practice with, fought with the statues that were brought up to light inside ancient tombs, and fought with the gunned illuminati soldiers. If you were able to notice, there was never a scene where she was captured or tortured. Is this a real portrayal or just a fruit of producer’s imagination? Before Lara Croft: Tomb Raider came into film; it was released as a computer game. One game critics said, â€Å"There is no doubt that Tomb Raider marked a significant departure from the typical role of women†¦ a reworks a male-dominated genre and features a female central character† (Kennedy). He further added that her appearance in masculine roles is a disturbance to the natural symbolism of men. I would surely agree with that. Since we were all kids, we are exposed to various kinds of films and most of these films are dominated by male characters. Women usually played the role as a lover of the main male character, a victim that should be rescued by a male character, a victim of savage men, a victim of monsters. In opposite of these all, men always played the role of the conquerors of all forms of evils. If there are films who features women, they are only very few compared to male dominated films. In schools, we seldom heard women in history. The only name I could remember is Joan of Arc. The rest are males. That is why it becomes harder for the people to accept highly profiled women. Lara Croft is the dream of every woman – strong, confident, quick, and intelligent. In real life, there are many women in the military and police force. But are they given the opportunity to engage in war if they are willing? Most of these women in uniform stayed in offices and where not allowed to engage in dangerous operations. Vengeance, is there a success for woman? The movie also shows that vengeance is also for women. Lara Croft who has never find peace from the lost of her father had accepted the mission to find the two halves of the magical triangles. Knowing that the illuminatis, or the people of light are also searching for the key and the two halves of the triangle, she faced many dangers in pursue of searching for her father. The film is trying to teach us that we are all human beings who are driven by emotions. Feminist’s movements’ become famous for fighting for the rights of women in the society. We have Abigail Adams (1744-1818) who fought bravely against slavery. Susan B. Anthony (1820-1906) who work tirelessly for â€Å"Woman’s Suffrage Movement. † We also have Clementina Black (1850’s-1923) who fought for improve social and industrial conditions for women and girls in England through militant unionism. The latest were Mary Wollstonecraft, Lucy Stone, Elizabeth Cady Stanton, Sojourner Truth, Gloria Steinem, Margaret Sanger, Alice Paul, and many others. They are the Lara Crofts of the real world. They fought bravely so that women can have equal rights with men in the society. Lara is fighting for the lost of his father and for the task which her father has started which was to destroy the two halves of the triangle. In the end Lara succeeded on her mission against strong gunned men, against stone statues that were given life, and over many obstacles. Woman Nature in the movie If somebody will ask, is there a woman nature shown in the movie? Yes there is, it is portrayed in scenes where Lara is thinking about her father, she cries, she dreams of her father, and in fact the main reason why he did the task of finding the triangle is because of her father. After the first introduction of Alex West in the movie, I was intrigue if Lara and Alex were having an affair in the past or any intimate connection. In the end she rescued Alex by changing the curse of time through the use of the triangle. There is no portrayal of sexual matters in the movie. In the end of the movie, Lara is wearing a lady’s dress and a hat with flower in it. Discrimination in the movie There was a slight theme of discrimination in the movie when black Cambodian people were hired by Powell and West to assist them in destroying the strong wall built in front of a passage to a secret place where one of the two halves of the triangle was hidden. Powell is sitting like a King, and his gunned men are watching over the black people who are working. This is a total portrayal that there are people who are under some sort of power who are forced to work as a term of service. In its totality, the movie is good. Its theme of adventure, and conquer by confidence and will is very uplifting. It is empowering women not to underrate their capacity and skills. It is telling men not to underestimate women, because not at all times they can control them. We are all born to this world with innate behavior and skills and that is not intended for pinning people down. References: Game Studies Lara Croft: Feminist Icon or Cyberbimbo. 3 July 2008 http://www. gamestudies. org/0202/kennedy/? %3Ftday=Friday Smart, C. , Women, Crime, and Criminology: A Feminist Critique. 3 July 2008 http://books. google. com/books? hl=enlr=id=llg9AAAAIAAJoi=fndpg=PR11dq=Vengeance+of+Womanots=lBqK4lPu3osig=PxRSKjqBTvAkvhMlIAKdAWYzUDY Wollstonecraft, M. , A Vindication of Rights of Woman. 3 July 2008 http://womenshistory. about. com/library/etext/bl_vindication000. htm Wikipedia. Illuminati. 3 July 2008 http://en. wikipedia. org/wiki/Illuminati