فهرست مطالب مصطفی بختیاروند

Towards the end of the 20th century, marketing experts made a significant discovery that successful marketing is not merely the outcome of routine activities carried out by marketing personnel. Instead, it is a complex phenomenon that involves a combination of mindsets, actions, competition, and the market planning process. Subsequently, a new form of advertising known as ambush advertising emerged. Ambush advertising refers to the practice of non-sponsors engaging in promotional activities that directly compete with conventional fundraisers, sponsors, and other rights holders. Despite the prevalence of ambush advertising, many countries have not yet enacted specific legislation to address such practices. Additionally, ambush advertising is utilized as a business strategy in certain countries to target competitors. In countries like Brazil, Russia, and England, where the organizers of major events and gatherings, such as the Olympic and FIFA committees, have made extensive efforts to establish exclusive laws granting them special rights to host these events, specific legislation has been enacted to combat ambush advertising.

Unsolicited commercial messages (spam) are sent electronically and in bulk, without the consent of the recipient, through tools such as e-mail or SMS. Apart from the advantages for advertisers, spam can violate the privacy of internet and mobile phone users and cause economic losses and widespread dissatisfaction of consumers and even merchants. This, along with the possibility of disrupting the functioning of systems such as e-mail and SMS, may lead to mistrust of e-commerce and digital economy.The results of this descriptive-analytical article show that some countries allow the sending of spam even without the consent of the recipient, and their subsequent opposition is considered an obstacle to sending, which is called the opt-out method. Other countries require the prior consent of the recipient that it is known as the opt-in method. The two mentioned methods are applied through three legislative approaches namely with tolerance, intermediate and hard, which are divided and named according to the way of dealing with spam senders and remedies and sanctions. The position of Iranian law regarding the prohibition or permission of sending spam is not very clear. In this article, passing a law or some explicit and transparent legal articles regarding spam, by adopting an opt-in method and predicting efficient remedies and sanctions in Iran, is proposed.

Magicians entertain spectators by using some tricks. Creating such tricks sometimes requires spending a lot of time and money by magicians which makes this group expect protecting their intellectual endeavor and preventing their imitation and unauthorized exploitation. The advent of digital technology, with the ability of mass and rapid copying and dissemination of the tricks, has doubled the necessity of this protection. This paper, written through a descriptive-analytic method, has concluded that in Imamiyah jurisprudence, there is no obstacle to the legitimacy and consequently, the protection of magic tricks.  Under the Iranian and U.S laws, granting intellectual property rights in the form of copyright, patent, trademark and trade secrets to the magicians is a probable solution to protect this group, each having advantages and disadvantages. As an alternative solution, self-regulating rules of magicians' unions may provide a relative protection for this group.

Smart toys connected to internet, which are able to communicate with the child and obtain some information from him/her and send it to a computer located elsewhere, in addition to benefits such as entertainment and education has faced the children’s privacy with serious probability of violation. The personal information collected from the child, may be misused by the manufacturing company or a third party may have illegal access it illegally. The challenges of smart toys for children’s privacy and their legal solutions have been studied. The U.S law, with laws and regulations concerning children’s privacy passed previously has provided a relatively desirable level for children. However, the Iranian law is faced with serious deficiency in this regard. Therefore, the authors have, using the American law solutions, recommended that a new law is should be passed or current laws could be modified. Some general rules and verdicts of the Imami jurisprudence confirm the necessity of protecting the children’s privacy in the internet of toys.

Second life is an important virtual world that due to its unique features like the ability to create diverse literary and artistic works has created a variety of legal issues. Given the existing terms of service of this website with its residents, its agreement and open source licenses may seem to be similar. However, the differences cause distinguishing them. Since the creation of works in second life is done using its facilities, it is very important to determine the owner of such works. In addition, the way these works are protected by users and the application of conditions of copyright protection to them should be examined. The results of this article show that only the user should be considered as the author and owner of original literary and artistic works created in second life. As one of the drawbacks of this website, one may say that the survival of literary and artistic works of second-life users is dependent on the will of owners on which parties have agreed on. Hence, it prevents the former from taking action against latter.

In some cases, software companies condition the sale of computer software on acquiring hardware components or integrate computer softWare with complementary software and hardware when designing products. Complementary software and hardware must be interoperable in terms of functionality. The specific nature of computer software causes network effects and mass production savings in software industry. The majority of software right abuse arises when the developer conditions licensing a software on the complementary software and hardware that makes it impossible to buy these products independently. Such condition in license agreements of computer software violates U.S antitrust laws provided that the developer has tied independent products and the seller has essential market power in the created products market. This condition has different competitive effects. In the Iranian law, the Act on the implementation of article 44 of the constitution which has stated the basic rules of competition, has not dealt with the issue perfectly and there are provisions in the Act on computer software developers and its by-law on interoperability. Given the absence of independent studies in this field, analysis of rules can lead to clarification of the subject.

New trends at national and international levels indicate an ongoing development in the context of intellectual property enforcement. This development may affect public health of societies. Although border and customs measures play an important role in ensuring the movement of medicines and prevention of their counterfeiting and smuggle, their excessive expansion may make their movement and accessibility difficult. The paper aims at studying the negative implications of intellectual property enforcement development on reducing access to medicines. Pursuing TRIPS-plus trend by certain countries and conclusion of ACTA may have negative effects in the public health field. Making a balance in applying the enforcements as a new strategy, along with other intellectual property flexibilities may be a proper solution to improve access to medicines.

With the spread of standard technologies in all fields, especially communications technology, standard essential patents have gained much importance. For the sake of assurance as to access to such patent, standard organizations have required the owners to undertake to grant license on this basis is to prevent owners of standard essential patents from abusing their exclusive power in the market and committing anti-competitive acts. Meanwhile, they are entitled to earn appropriate remuneration for their essential patents.
There are controversies as to conditions of the said obligations. There have been a number of cases which present a common practice with regard to preventing abuse of excusive power and anti-competitive acts.
The results of this analytic-descriptive study show the importance of a balance between the interests of standard essential patents owners and those enforcing standards and in order to preserve competition, the conditions of granting licenses must be determined clearly. In the absence of specific provisions, in the Iranian law, in order to regulate standard essential patents, recourse may be made to the rules on compulsory licenses and prevention of abuse of dominant position in the act on the implementation of article 44 of the constitution. Meanwhile, specific provisions for standard essential patents would clarify the legal status of such patents and reduce disputes.

Trademark parody which has been recognized as an example of freedom of speech is a means to comment on products introduced by trademark. In this type of imitation, inspired by the original trademark, a humorous form of it is drawn in order to convey a specific message to the reader. Here, the benefits of three groups are at stake: trademark owners who enjoy exclusive rights; parodists who enjoy freedom of expression, and the public who are entitled to benefit from the results of parody. In the law of the Unites States and countries such as France and Germany, case law has played a significant role in balancing these conflicting interests. Similarity between the parodied trademark and parody and the specific effect of parody on the trademark have led trademark owners to bring infringement and dilution actions. In the Iranian law, there is no specific provision as to trademark parody. However, principle 24 the Iranian Constitution concerning freedom of expression is a suitable basis for recognizing trademark parody. In this paper, it has been suggested to provide for parody in laws as an exception to trademark owner's exclusive rights and to declare its boundaries.

There are different types of awards in international commercial arbitration and the arbitral tribunal may issue a variety of awards concerning different issues. The arbitral tribunal's authority to issue different types of awards has been explicitly provided for in certain laws. The fact that there are different types of awards may be implied from the International Commercial Arbitration Act of Iran. The most important awards are final, partial and interim awards cited by almost all international instruments. Another category of awards, including default, declaratory and constitutive awards are among those not been referred to in any arbitration rules and laws. In Iranian law, the International Commercial Arbitration Act, contrary to provisions concerning national arbitration, contains distinctive and comprehensive provisions concerning interpretative and supplementary awards. In this analytical-descriptive article, the authors have tried to study different types of awards and put forward some suggestions to amend the Iranian Act.

The right to be forgotten is a relatively recent concept raised in the European Union and the United States. This right authorizes people to require deletion of information and data published on internet with their consent or by third parties; if a person applies this right, the others may not follow them via search engines and with the passage of time, different social stigma are not affixed to them. This right is not absolute and must be considered in conjunction with other rights such as freedom of expression and media freedom. Therefore, it is necessary, based on specific circumstances of each case, to determine, whether a deletion request is justified. This article, through a descriptive-analytic method, has studied this issue in the legal systems of the European Union, the United States, Iran and Imamia jurisprudence and concluded that in Iran, such right does not clearly exist and its legal recognition is necessary.

Using celebritie's name and other characteristics in commercialization of goods and services is a feature of modern marketing. The exploitation of celebritie's name, image and likeness is protected as publicity right in the American legal system which is governed by special rules. In Iran, the executive order on the use of artists, actors and athlete's image 2014 has, for the first time, protected the publicity right, but it only deals with its generalities and is not enough to meet the society’s needs. This descriptive-analytic paper proves that publicity has economic value and is considered as property. There authors believe recognition of this right is necessary given the economic and commercial progress and development of today’s society and is not in contradiction with foundations of imamia jurisprudence and Iranian law. Yet, the balance between individual and public interests in the form of preventing the excessive spread of publicity right is an important issue which must be considered in determining subjects, persons protected and the limits of this right.

With the invention of camera a question arose and is still in place whether photography can be protected as an artistic work? On one hand, camera is a mechanical tool with an undeniable role in the creation of photography and this fact is the main difference between it and other artistic works such as painting. Therefore, some believe that photo quotes only the reality and is void of the originality necessary for being protected as an artistic work. On the other hand, the role of photographer as the one who uses camera to create the photo and makes choices among the available options and selects one may not be ignored. Hence, some consider photo as the result of photographer’s creativity which is original and is an artistic work that must be protected. The latter opinion has been accepted in the law of most countries and important international documents including Berne Convention. In this article, through a descriptive-analytic method, the way to protect photo and determine its originality and related topics have been studied in the national laws and international documents.

The compulsory license for invention right is a working procedure for maintaining interaction between the exclusive rights of the owner and the people’s public rights in enjoying social welfare that is foreseen in the international documents and internal rights of many countries. This article is intended to study the definition, instances of issuance, and the rulings for this type of license. In the Iranian law, the compulsory licenses of invention right can be justified by the jurisdiction of the Islamic state, as the grantor of invention right, in determining its limits. Non-exploitation of the invention needed for public use can, under certain circumstances, be regarded as hoarding. Actions resulting in the issuance of this license are, in many instances, an evidence of misusing the right and causes inflicting loss on the society, the prevention of which can be justified by the principle of no harm (lā ḍarar).

Conditioning the licensing of an intellectual product on acquiring another i.e. tying, as an essential issue in competition law, is divided into legal and illegal. The elements of illegal tying in the European Union are: anti-competitive effect, distinct products, force and, depending on the case, agreement between undertakings or abuse of dominant position. Legislators, in the United States and Iran, have provided for similar conditions. The three legal systems have prescribed civil remedies and criminal sanctions such as declaring the agreements as automatically void, their voidability or fines which, depending on circumstances, will be enforced. Provisions of the Iranian law, both on conditions of tying and its remedies and sanctions must be revised.

Nowadays, business methods are among the most important assets of a company, protectable as an intellectual property right. Different legal systems have, always, taken different approaches in this regard. Although trade secrets are the most traditional form to protect business methods, the companie's willingness to patent inventions in this field has so increased that the significance and impact of recognizing these methods as inventions has become a controversial issue worldwide. This paper, through a descriptive-analytic method, has studied the possibility of business methods protection in deferent legal systems and concluded that today, countries such as the United States, India and Japan, have, despite their previous practice, showed much tendency towards protection of business methods as inventions; the position of TRIPS in granting patent rights to inventions including inventive steps and industrial applicability is also favorable to business methods protection. However, in Iran, business methods have, practically, been excluded from the scope of protection. Therefore, considering the deep foundations of Imamia jurisprudence in protecting people's material and immaterial rights, it is necessary for the Iranian legislator to add an article to the Iranian Act on the Registration of Inventions, Industrial designs and Trademarks to protect business methods or remove its exclusion in the Act, at least, with regard to applicable electronic commerce methods. Finally, if for any reason, business methods are not protectable in the form of trade secrets or patents, recourse can be made to other forms of protection such as utility models.

IPRs owners, especially inventors, from the creation of idea up to its commercialization are often faced with disclosure of confidential information delivered to third parties during license agreement negotiations. In fact, the main purpose of confidentiality agreements is to protect different types of IPRs including know-how, trade secrets, etc. with a view to prepare the background for proper and effective supervision and management of their exploitation. The use of non-disclosure agreements in high-tech sector, specifically for computer and internet companies is a common in license agreement negotiations. On the other hand, researchers and inventors in knowledge-based companies may be faced with challenges like disclosure of confidential information in the process of acquiring IPRs protection. The important point is the ignorance of many idea owners and inventors as to how such agreements are concluded. When delivering confidential information, non-disclosure agreement covers merely this information and is concluded for its protection before license agreement is concluded or during license agreement negotiations. Signing and entering into such agreements, without knowledge of laws and their characteristics, may cause dangerous and heavy obligations for parties. In this paper, with an analytic-descriptive approach, we define non-disclosure agreement, its necessity, function, types and common terms and conditions. The results of this paper indicate the necessity of delivering accurate and efficient information to IPRs owners regarding entering into confidentiality agreements and the need to modify the current legal structure in order to protect their rights.

3D printing is the process of accurate manufacture of 3D things from a digital file in the shortest time and with the least cost, which is applied in different industries. This process is performed via 3D printers and makes product the manufacturing rapid and diverse. Given its unique characteristics, the 3D printing technology is protectable in the intellectual property law system. In the mean time, it may bring about different issues as far as this system is concerned, and leads, directly and indirectly, to the infringement of the owner's exclusive rights. Hence, there is resistance from big companies to the spread of 3D printing. (because the offer of fake and infringing product, due to their incompatibility of the raw materials of printers that are not of the original products quality). Confronts the big companies with economic downturn. On the other hand, it results in the loss of consumer's confidence and even injuries. In order to provide a definitive solution to these unique issues, adopting proper legal measures and correct management to contribute to the development of this technology is an undeniable necessity.

One of the areas of industrial property, which is most affected by developments of the borderless cyberspace, is trademarks area in which many challenges related to various fields such as territoriality principle, domain names, keywords and linking have been raised.As a result, the infringement of trademark owner's exclusive rights has been made easier. Many of these challenges, especially in the U.S. law, are considered as trademark infringement or at least trademark dilution to which the legislators have payed special attention. Even in the U.S. , case law has gone beyond and, in order to deal with the challenges, has put forward two innovative doctrines, namely "Nominative Fair Use" and "Initial Interest Confusion". The results of this study show that, in the Iranian Act on the Registration of Inventions, Industrial Designs and Trademarks, only the owner's rights infringement is sanctioned, which does not cover cases such as trademark dilution.Also and the important topic of fair use, which is necessary in cyberspace, has not been dealt with. Therefore, a reform of law is felt well.

Nowadays, advertising companies and firms try to establish a trade name which is superior to similar ones. In order to overcome their competitors in advertising campaigns, the firms have adopted new approaches. They use the best and newest marketing and commercial advertising methods to attract potential customers and consumers. Some advertisers use their competitor's trademarks, trade name, etc. to advertise their goods and services. This kind of advertisements which has increased considerably, is known as comparative advertising and makes it possible for consumers to compare the characteristics of different brands including the quality and price of goods and services and at the same time, in some cases may mislead consumers as to the source of goods and services and lead to unfair competition.
When companies initiate advertising, comparative advertising challenges including those related to intellectual property arise; therefore, the courts are faced with many questions: does using a competitor’s brand or trademark in comparative advertising an infringement of its trademark rights? Is it possible to raise fair use defense against the trademark infringement claim? What rules govern comparative advertising in online environment? In the Unites States, comparative advertisement is used frequently. There are a plenty of legal and economical literature in this regard and a set of specific rules deal with this issue. For example, the Federal Trade Commission, in the 1979 declaration, defined comparative advertising and declared the conditions of its prohibition. In fact, until 1970 comparative advertising had not been dealt with considerably. But since then, the attitudes towards its legality changed and it was welcomed and used frequently. Bixby and Lincoln defined and explained comparative advertising in 1989 (Bixby & Lincoln, 1989). There are other literature in 1993 and 1998 reviewed in this paper (Barry, 1998). In the 20th century, more works were prepared in the United States. For instance, in 2000, Posner discussed comparative advertising and its relation to consumer's confusion (Posner, 2000). In recent years, the relation between comparative advertising and intellectual property has been raised.
In this paper, first are studied the concept and types of comparative advertising, then the rules applicable to such advertisements and finally, the relation between comparative advertising and intellectual property and its main example in this regard, i.e., trademark. The authors have tried to answer the above said questions under the legal systems of the United States, the European Union, India (as a developing country) and Iran.
Theoretical frame work: The Federal Trade Commission has defined comparative advertising as advertisement which, neutrally, compares commercial brands from the viewpoint of quantity, price, introducing by name, image or other distinct information. In simple terms, comparative advertising is a form of commercial advertising in which two or more brands of similar products of the same kind are compared from one or more characteristics of the product. Comparative advertisements compare the goods or services of a company to those of its competitors. This kind of advertising has been designed to highlight the advantages of goods and services offered by advertiser in comparison to those of a competitor.
Comparative advertising may take two forms: direct comparative advertising and indirect comparative advertising. Direct comparative advertising is where the messages encouraging the sale, illustrate the merit of advertisers products in comparison to specific products offered by the competitor recognized by a special name or trademark. In indirect comparative advertising, the relation between compared products is implicitly mentioned but it is not expressly declared that the brand used is compared.
This paper, through a descriptive-analytic method, introduces comparative advertising from the perspective of a number of legal systems, namely: the United States as a pioneer in regulating comparative advertising, the European Union which has enacted a directive in this regard, India as a developing country whose experience can help with regulating such kind of advertisement in Iran.
In the European Union, directive 2006/114/EC on misleading and comparative advertising has, in certain circumstances, authorized comparative advertising. In India, comparative advertising has not been defined, but according to article 29 of Trade Marks Act 1999, commercial advertising must not contain unfair practices; therefore, comparative advertising may, in some way, be covered by the term unfair practices. In Iranian law, only in some scattered laws and regulations, comparative advertising has been referred to, which do not seem to be sufficient to meet the intellectual property rights holder's interests especially those of trademark holders, given the large volume of commercial advertising.
Conclusions & Suggestions: Some countries such as the United States have a strong set of rules applicable to comparative advertising both in traditional and online environments. In such systems, comparative advertising is allowed under certain circumstances. In Iran, despite scattered laws and regulations which have a limited scope or are restricted to contractual relations, there are no specific provisions dealing with comparative advertising or the possibility of infringing another's trademark in detail. Therefore, given the advantages of comparative advertising and at the same time, in order to prevent possible trademark infringement, it is necessary for the Iranian legislator to pay attention to this kind of advertising and enact new and specific rules regarding this issue and regulate comparative advertising by conditioning it to certain conditions.

Nowadays, grant-back clauses are one of the most important conditions in patent licensing agreements. These conditions have beneficial impact on competition and anti-competitive behaviour that require special attention by competition law. In America, the provisions that were previously considered illegal are now assessed in accordance with rational criteria and as a part of the contracts.The illegality of these provisions may lead to the illegality of the contract. In Europe, only exclusive grant-backs are subject to an individual assessment, and not as a part of more global contract.Other conditions of the contract areexempt from general prohibition considered in Article 101 of European Treaty. In Iranian law, these provisionsare new issues which can be justified by the concept of reasonableness and the general rules of contracts. This condition does not specifically mention in General Policies of Implementation of Article 44 of the Constitution. It is forbidden if it is regarded as an unfair term oras an abusive of dominant economic conditions.

As a key element in each business strategy, commercial advertisements increase competition on the market through providing information and introducing goods and services. As a result, commercial advertisements play a vital role by transmitting information related to the products, and thereby they benefit both producers and consumers. Consequently, a modern capital economy without commercial advertisements is hardly imaginable nowadays. Nevertheless, by providing misleading or false information and by using confusing trademarks, some commercial advertisements mislead the consumers and cause liabilities towards them and sometimes towards the competitors (usually intellectual property owners). Through a descriptive approach, the present study explains the concept and the status of misleading commercial advertisements in the legal systems of the European Union, the United States, the Islamic Republic of Iran, and the Imamiyah Jurisprudence, and paves the way for the Iranian legislator to enact exact and effective laws in this field.

The complexity and diversity of international assignment or license of IPRs and the territoriality principle, makes determining their applicable law difficult. The rules governing IPRs, are distinct from applicable law to contractual issues, hence the importance of characterization in these contracts. Party autonomy and the discretion of courts are faced with restrictions including competition law originating from national or international public policy. In the absence of agreement as to governing law, Rome I Regulation, after stating specific rules for determining the applicable law to certain categories of contracts, has adopted the characteristic performance criterion not applicable to certain IP contracts. Other instruments typically provide for the application of the law of the country with the closest connection with contract. There are different standards to identify such a country, the best of which is presented by Max Planck rules which is based on the analysis of a group of elements. Since Iran is a developing country in need of importing technology, the assignee’s or licensee’s country also deserves attention. The Iranian laws have no specific rule in this regard and the conflict of law rule in article 968 of the Civil Code is not compatible with the characteristics of those contracts.

Although electronic contract consists of offer and acceptance, its specific characteristics and the fact that parties to it state their intention in a virtual world i.e. Cyber-space, and specially given consumer's need of enough protection in this environment, new rules have been included in laws concerning this kind of contract which seek to make sure that consumer has been well informed before accepting the offer and making the contract. In this paper, first are studied the offer and its rules and second come the acceptance and some issues about it in electronic consumer contracts.