The forthcoming holiday season is going to be awesome.
For one, we all get to go Home For Christmas. My house, I know,
will be The Home of Christmas. After a long and busy year I will
spend time with my wife and two boys who, too often this year, I
have shamefully neglected.
The first thing we will do – as every year – is
retrieve the Christmas Tree from our Christmas Cave (aka a dark
corner of our shed). Dusting off the Christmas Box we will then
take out and hang Christmas Baubles on the tree. Finally, as
tradition demands, we will place one of the two Angels we have
majestically on top of the tree. There she will sit like a
Christmas Rose until 6 January when once again she will be taken
down and carefully stored for another 11 months.
When I was growing up on the Isle of Man, we also used to
decorate the house with Holly – and frequently prick
ourselves in the process. Perhaps it's not such a bad thing
that that particular feature of Yuletide & Jubilation did not
emigrate with me thirteen years ago. Making a Snowman was also a
popular Christmas pastime (provided of course it snowed –
which it rarely did back then).
I also loved going from house to house with the 3 Wise Men (my
brothers – James, Edward and Matthew) singing (if you could
call it that) a Christmas Collection of carols. Rudolph The
Red-Nosed Reindeer and Good King Wenceslas (the polite version)
were two particular favourites. And then there was pulling your
Christmas Cracker at lunch to find not only your paper crown for
the day but possibly the worst joke in history. Ah, what an age it
was...filled with stories of Magical Elves and Santa's
As I reminisce, I can't help but think that
commercialisation1 of Christmas has turned Santa's
Christmas Wonderland into Santa's Christmas Factory, devoid of
the magic it once had. But that's being too cynical –
Christmas is still magical, and nowhere is this more evident than
in children's faces when they open their little bundles of Elf
Magic on Christmas morning.
I am not sure where I will be this year on Christmas Day
(although no doubt wherever we are my two boys will be hoping for
Breakfast With Father Christmas). If the sun shines, it might a
Christmas in the Park, or it might be Christmas in the Bay (Hawkes
Bay) with some good friends. One thing is for sure, it won't be
Christmas at the Races – watching gee-gees running around a
track is not what I think Mr and Mrs Claus have in mind for
25th December. However, Where New Zealand Goes For
Christmas is of course an individual thing and each to his/her own.
'Tis the season to be jolly after all.
On that upbeat note, I would like to wish you all a safe and
happy Christmas, and a prosperous 2014.
(PS You might be wondering what on earth this article has to do
with trade mark infringement2. The article actually
contains references to 26 Christmas-related trade marks that are or
have at one time been registered in NZ – and as a result of
which they can or could have been infringed. I'll let you find
1Refers to the process of introducing a new
product or service to the marketplace (whether in New Zealand or
overseas). For the purposes of a patent application
commercial working can include taking orders for a product or
service (even if in confidence). It is important to understand that
commercial working of an invention before a patent
application is filed may invalidate that patent application (see
2Refers to the commission of a prohibited act
with respect to a patented invention without permission
from the patentee. In New Zealand, the Deed of Letters
Patent confers on the patentee a monopoly to make,
use, vend or exercise the invention in New Zealand.
Performing any of these acts without the permission of the
patentee will amount to an infringement if the
patent is current and in force. Permission will typically
be granted in the form of a license. Remedies for infringement can
include an injunction to restrain further infringement, payment of
damages suffered by the patentee as a consequence of the
infringement or payment by the infringer of any profit he/she/it
made by virtue of the infringement, and legal costs.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
James & Wells Intellectual Property, three time winner
of the New Zealand Intellectual Property Laws Award and first IP
firm in the world to achieve CEMARS® certification.
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A trade mark with the status of a "well-known" significantly improves the extent of protection as it provides the proprietor, the exclusive right to the trade mark against all unlawful users thereof, regardless of the differences in the field of business, goods or services.
As the patent infringement matters often involve complex technologies and huge amounts at stake, it not just requires exercise of sound judicial wisdom by the Courts but also unswerving standards to be followed by them . . .
The decision highlights lessons relating to contracting with large software vendors and the risks with under-licensing.
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