• Trademark Infringement –

Trademark infringement occurs when there is unauthorized reproduction of a trademark with the intention of passing off the goods as a genuine product of the trademark; or

When someone, other than the registered owner or license holder of a trademark, uses a trademark which is substantially identical with or deceptively similar to a registered trademark that belongs to a registered owner or license holder, in the course of trade.

Under the current Trade Marks Act (Ch.385), a trademark infringement is covered under Section 53 of the Act.

• Infringement of a patent – If the protected invention is a product, a person other than the registered owner or license holder, who is not authorized to manufacture, use or sell that product infringes the right of the owner or license holder of the patent.
  Where the invention is a process, a person other than the registered owner or license holder, who is not authorized to use that process, infringes the right of the owner or license holder of the patent. Also if a person other than the owner or license holder who is not authorized to manufacture, use or sell any product obtained directly by means of that process infringes the right of the owner or license holder of the patent.

• Copyright infringement –

Copyright Infringement occurs when a copyrighted work is either reproduced, translated, adapted, re-arranged, transformed, publicly displayed or performed in public, distributed, broadcast or communicated to the public through transmissions and without the permission of the copyright owners or license holders.

• Industrial Designs Infringement – occurs when a person other than the registered owner or license holder makes, sells or use a product in which the registered design is incorporated or applied.

You may however, it may be difficult to enforce your rights or take action against those who have infringed your IP, when you don’t have IP protection or IP rights over your work/creation/IP.

Because you will have the burden of proving that the work/creation/IP that is the subject to infringement belongs to you and that you are the owner or the right holder over the work/creation/IP.

Counterfeiting

Counterfeiting in the context of intellectual property applies to trademarks and in particular, counterfeited trademark goods.

Counterfeited trademark goods refer to any goods including its packaging that bears, without authorization of the owner or right holder, a trademark which is identical to the trademark validly registered.

Counterfeited trademark gives the impression of being the genuine product originating from the genuine manufacturer or trader. It is outright a fraud. Counterfeiting is a serious public health and safety threat in PNG as a developing nation. Though there are no official reports on this, examples can be seen in countries like China where in May 2004, the Associated Press from Beijing reported that 47 people had been accused of selling fake infant formula, an act that led to deaths of dozens of children. Authorities are still on the hunt searching for fake infant formula whereby the suspects are said to repack 1,000 grams cans displaying New Zealand brands as reported by the Shanghai Daily on 11 April 2016.

A counterfeited trademark infringes the rights of the owner of the trademark in question and therefore the owner of the trademark or right holder has the right to seek redress in the Trade Marks Act (Ch.385) under the various civil and criminal penalties and/or Customs (Prohibited Imports) Regulation Ch 101, against those who have infringed his/her rights.

Piracy refers to the illegal sale of copyrighted works such as music, movies, video games etc. it is illegal because the sale is not authorized by the right holders. Pirated copies are sold at very low prices by street vendors and which are of very poor quality or may even be faulty copies.

Though technological advances have given us innovative ways to distribute creative works on a global scale it has also given us serious forms of piracy. All those industry that depend on copyright such as the movie, music and software industry are facing huge losses especially from optical disc piracy. Optical discs include formats such as digital versatile discs (DVD), DVD Recordable (DVD-R), compact discs (CD), CD-ROM and video compact discs (VCD).

There are several options available when someone has infringed your IP Rights. However, first, there are some initial actions that must be taken in order to successfully protect your IPRs and deal with those who have infringed your IP Rights.

1. First of all you should ensure that you have the legal title [or the intellectual property rights (IPR)] over your work/creation/IP. For trademarks, patents and industrial designs, this is established when you have obtained protection through registration of your rights.  For Copyrights, this protection is automatic under the Copyright Act and therefore there is no need to obtain protection through registration but you must be sure that you can establish ownership. Whether you are the author (original owner) of the work or ownership of copyright has been transferred to you by way of assignment (copyright owner) and by the fact that your work is an original work and not a copy.
2. Once you have legal protection over your work/creation/IP, you are able to take action against those who have infringed your IP rights. In other words, you are able to enforce your rights. If the act of the infringement involves imports or exports at the border report the matter to Customs (IPR division). When infringement occurs within PNG and you wish to take criminal action, make a complaint to the Royal Constabulary of Papua New Guinea (RCPNG) who will prosecute the matter.
3. Should you want to take civil action you must seek legal counsel – seek legal advice from a lawyer.

The reason has been that there are civil remedies and criminal penalties under various IP laws that provide for redress or set right the undesirable actions that have occurred from the various IP infringements. Therefore a lawyer would assist you in identifying these penalties and how to apply them in the case of an infringement. Furthermore, should you decide to pursue legal action, the lawyer will assist you with legal proceedings.

You may however, it may be difficult to enforce your rights or take action against those who have infringed your IP, when you don’t have IP protection or IP rights over your work/creation/IP.

Because you will have the burden of proving that the work/creation/IP that is the subject to infringement belongs to you and that you are the owner or the right holder over the work/creation/IP.

Try to create original works and ensure that what you are creating is not identical or similar to other people’s creative work or work that already exists.

For a trademark and industrial design, always do a search of the Registries (Databases that store registered marks and designs and granted patents), to see what is already registered. This will ensure that what you are creating or have created will not/does not be in conflict with what is already registered and protected.

For patents, ensure that what you are creating is an invention and/or something that does not exist globally.

For copyright, ensure that your work is original. Or if you are using someone else’s work to create your own original work make sure the copyright has expired and is in the public domain or seek permission first before using all or parts of another person’s copyright work.