B.
Patent rights
The patent right, second shutter of the intellectual
property, gathers in three categories : rights relating to industrial
creations, on the distinctive signs and the unfair competition.
We will examine in particular two points which are attached on
our subject : the substantive patent law, component of the right of
industrial creations and trade-mark law and of the domain names, pertaining to
the right on the distinctive signs.
1)
Substantive patent law
The patent is a title which confers on its holder, for one 20
years period as from the deposit and on a given territory, the right to
prohibit with whoever the reproduction (i.e. manufacture, the use or marketing)
of the invention. The holder of the patent can yield his patent to a third, or
concede a user license of it, generally subject to remuneration. The monopoly
is granted only provided the patent is maintained, i.e. taxes of renewal are
paid regularly. N the other hand, the invention will be revealed and will
enrich thus the collective inheritance by knowledge.
The deposits can be done in France, but also abroad or into
international. The European patent is delivered by the European Patent Office
after a single examination procedure indicating whole or part of the country
having ratified Convention on the European patent (either 19 States). It is
also possible to proceed to a reservation in several countries, via an
international request for patent, deposited under the terms of the PCT (treated
co-operation as regards patents between 96 States). The international request
indicates the contracting States for which a protection is required, then the
request is validated by deposits in each one the countries selected.
However, the Western companies often see in the patents only
one old and not very effective manner to protect their inventions and their
know-how against a possible hacking. This problem is all the more
prégnant in a context of universalization, of appearance of new fashions
of production, such as the setting does not place networks of research between
companies, and of new fashion of dissemination of knowledge, in particular on
Internet, because the risks of imitation and counterfeit are increased. The
protection of the patent rights thus holds an important place in the
installation of complex technological co-operations, because it provides the
essential legal base as well to the protection of know-how and the knowledge
obtained as with the appropriation of new knowledge.
2)
Trade-mark law and domain name :
Each computer connected to Internet has an electronic address,
represented by a succession of four digits separated by points. But, a system
was carried out, making it possible to make correspond at each address I.P an
address symbolic system made up of words intersected with points : it
is about Domain Name System (D.N.S), organized in zones of
namings national and international .
There are four zones with international vocation and
which is managed by the INTERNIC : «.com » for the
commercial activities, «.net » for the authorities taking part
in the operation of Internet, «.int » for the international
organizations, and «.org» for associations.
Concerning the zones in national matter, each country has an
antenna of the Network Information Center (N.I.C) responsible for the
management of the domain names for the corresponding State. They are identified
by a code with two letters (example : «.fr» for France). In
France, it is the National Institute of Research in Information and Automatic
(I.N.R.I.A) which manages since 1987 the zone «.fr», under the
supervision of the Ministry for industry.
A company having a Web service will may find it very
beneficial to adopt a domain name made up of its corporate name or its
commercial name, in order to be easily recognizable by the Net surfer. One thus
seizes clearly all the stake that there is for the companies to be done one to
allot an electronic address, more especially as the homonymy is impossible
here.
In France, it is N.I.C-France which allots the domain names.
This organization observes certain rules, in particular those of the Charter of
naming Internet in France, which implies that the selected name has a close
link with the applicant : it must correspond in the name of the
organization depositing, with its initials, or with a trade mark by him.
Moreover, N.I.C-France applies the principle of the «arrived first, been
useful first », which means that it checks that the requested name
was not already allotted, in order to avoid any risk of homonymy.
For the recording of a domain name of the zone
« .com », it is advisable to contact the INTERNIC, managed
in the United States by an organization called Network Solutions Incorporation
(N.S.I). As for the French hierarchy, one will apply the rule of
« arrived first, been useful first », but this time, it
will not be required that the desired name corresponds to a mark, initials, or
in the name of the applicant. However, the N.S.I will ask the applicant to
guarantee that it will use this name with a legitimate aim and that that does
not carry not reached, to his knowledge, with the rights of others.
If, in oneself, the identification of an Internet site does
not confer any right of ownership intellectual, it can happen that a domain
name is regarded as a counterfeit, if he takes again with the profit of the
holder the heading of a preexistent mark. In the same way, the use of the name
of a concurrent company can pose problem.
Conclusion :
Generally, the current right as regards intellectual property
is able to frame the exchanges on Internet. It is thus not necessary to create
a virtual or numerical right specific, as that appears under consideration in
certain countries such as the United States or Japan. On the
contrary, that would harm the conceptual unit of the royalty and would oblige
the legislator with ceaseless adaptations in order to follow the technological
developments.
However, of the difficulties appear on the level of the
application of the law, in particular because of the appearance of new uses
(news categories of works, digitalization of older categories) and of
international dimension of Internet.
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