Technological development and with it the emergence of the Internet and Electronic Commerce has endowed man with innumerable benefits, but contradictorily the improper use of third parties motivated by the growing competitiveness of the world and the globalization that the emergence of technologies implies has brought disadvantages, those who have motivated my interest in the subject at hand, which is nothing more than my contribution to such a controversial issue.
Which is always novel due to the fact that technology grows at an accelerated rate, causing infringements not previously foreseen in the laws of different countries to arise. This has been the fundamental incentive to develop this work since legal professionals must study hard to provide a solution from the legal point of view to the conflicts that are coming due to the use of the Internet and coupled with it the emergence of Electronic Commerce.
At present, natural persons such as legal entities use the Internet to carry out commercial negotiations through the use of the network and with it the rise of Electronic Commerce in commercial practices. Therefore, as a result of the use of it, violations of intellectual property rights arise, specifically the subject that concerns us, the cases of infringements of exclusive rights of trademarks.
Development
Electronic Commerce
1.1. Definition
It is the exchange of commercial information or the purchase and sale of products or services based on the communication of data over communication networks such as the Internet.
Not only is the Internet the only means of communication with which Electronic Commerce can be carried out, but also through radio, telephone or television, being the electronic coincidence that allows these means to interact with each other and be in some way the medium to foster business relationships at different levels. The possibility of accessing the Internet is a very important aspect for Electronic Commerce.
1.2. Advantages and disadvantages of electronic commerce
Advantage
Electronic Commerce that has the Internet as a medium for its development and brings with it a set of opportunities from different points of view for both consumers and providers who in the electronic environment have more facilities to enhance their commercial relationships, facilities than in traditional commerce cannot offer them, among them the following can be mentioned:
• The place where the parties are is not necessary since the parties in this trade are in different places.
• The importation of the good does not go through customs but the commercial transaction is carried out in cyberspace.
• There are no paper records left since so-called electronic contracts are made, which entails a reduction in costs for the Companies.
• Companies' intermediaries are reduced since the Internet is an open market.
• Encourages the participation of small companies.
• Transactions become effective more quickly, improving the efficiency of the Companies.
• Allows access to a large volume of information.
• Competition increases, which consequently improves the quality and variety of products and services.
• Improved distribution and lower costs.
• Produces operational benefits.
• The Buyer increases their bargaining power, having greater access to suppliers, increasing the possibility of purchase and decreasing search costs.
• Connection between companies and possibility of transactions between them.
• It lowers costs and prices.
Disadvantages
Along with the advantages, there are risks that I will express in a concise way:
• Privacy and security, since a large number of users do not trust the Web as a payment channel.
• Risks regarding the validity of electronic transactions, taking into account the controversy related to the completion of the contract entered into by these means.
• Lack of culture of the cyber buyer.
• Insufficient accessibility of consumers to the Internet.
• Cold purchase there is no physical contact with the product to buy.
• Technical Issues related to the slowness of the system among other possible existing problems.
• Political, social and legal issues.
3. Infringements of the Exclusive Rights of Trademarks
We will analyze the general characteristics of the different conflicts that arise when the distinctive signs are used in Electronic Commerce.
The commercial activities carried out through the network have exposed Industrial Property Law, specifically brands, to a set of challenges, one of which is one of the most important to ensure the peaceful exploitation of the exclusive rights over these signs. Together with the rest of the modalities of Industrial Property, it is brands that are subject to most of the attacks that harm the rights of the owners due to their use repeatedly in advertising, marketing and commercial offers that exist on the Internet..
The development of commercial activity on the network has its influence on distinctive signs in three fundamental areas:
1. To enhance its value, motivated by the fact that the Internet has increased the value of brands and other distinctive signs for Companies and, in general, all intangible assets in order to expand market spaces and consumer confidence.
2. To create new distinctive signs. The appearance of new distinctive signs for the network, in this case we refer to the registration of top-level domain names that identify sites as virtual establishments and can bring risks of confusion or association regarding the business origin of the products and services.
3.Multiplying the harmful acts towards the holders of distinctive signs. They may arise from different types of acts derived from actions of unfair competition and those related to advertising activity and those in which registered signs are used commercially.
Specifically, the infringements that occur in Trademark Law are:
a) Risk of confusion, including the risk of association: this is a phenomenon that occurs frequently on the Internet, as individuals exploit the reputation of others in order to attract customers. These behaviors are frequently reproduced online and there may be various assumptions: 1) use as domain names of signs registered as trademarks 2) practices related to the use of electronic resources 3) use of words in the content of a web page Without using the protected sign, the consumer believes that the page is related to another Company or to another known sign.
b) Dilution of well-known signs differently from the risk of association, in dilution the public knows that there is no relationship between the holder of the well-known mark and the one who uses it unfairly, this type of infringement must take into account two assumptions: 1. dilution carried out as an act of unfair competition by a competitor who, by imitating the brand, generates in the consumer the idea that the same brand serves to distinguish the same products from different manufacturers. 2. It is involuntary on the part of consumers motivated by knowledge about the sign.
c) Marketing by third parties of third-party brand products or services when a product or service with a distinctive sign belonging to another Company is used in Electronic Commerce.
d) Conflicts with Internet domain names In this case, the trademark owner conflicts with a domain name owner.
e) Protection of Notorious Brand the notoriety of the brand can be achieved through its use on the Internet. It is important that the notoriety is effective.
Conclusions
We can conclude that Electronic Commerce and Intellectual Property constitute an effective tool for developing countries for the economic growth of those nations and competitiveness with the rest of the world, taking into account that the Internet must be developed jointly to carry out this end. The defense of the exclusive rights of the holders of distinctive signs on the Internet is a controversial issue and generates a set of legal problems caused by their use on the Internet. The legal systems of the different countries do not regulate the exploitation of distinctive signs on the Internet, but rather these only appear in recommendations and non-binding agreements of International Organizations related to Industrial and Intellectual Property.As a consequence of the aforementioned, we can recommend to the different countries that they develop their legal systems so that they grant security to the commercial relationships established on the network and where the distinctive signs are subject to infringements of their exclusive rights due to the important role in the business relationships.
Bibliography
1. Hernández Cortés, Danilo. Legal Aspects of Electronic Commerce in Cuba. Degree Thesis of the Master's Degree in Telecommunications Law, 2008.
2.Van Thi, Tuy.La Marca: analysis of its legal regulation in the Socialist Republic of Vietnam. Graduate Thesis of the University of Havana, 2007.
3. Hernández Valdez, Migdalia. Domain Names and their relationship with brands on the Internet. Master's Degree Thesis, 2008.
4. Quiñones Castillo, Martha R. The Use of Trademarks as Domain Names on the Internet. Master's Degree Thesis in Intellectual Property Management, 2005.
5. Management of names and Internet addresses: intellectual property issues. WIPO Report on the Internet Domain Name Process, 1999.
6. Bercovits, Alberto: History and theory of the protection of Industrial Property and its importance for economic development, taken from Moreno Cruz, Marta and Emilia Horta Herrera: Selection of Industrial Property Readings, volume 1, Editorial Félix Varela, La Havana, Cuba, 2003.
7. Bercovitz, Alberto. Introductory notions about brands. Madrid, 1989.
Legislation consulted
1. Cuba. Laws, Decrees, etc. Law No. 59 Civil Code, July 16, 1987. Ministry of Justice, 2003.
2.Cuba. Decree-Law 203 Trademarks and Other Distinctive Signs, May 2, 2000, Ministry of Justice, 2000.
Websites
1.http: //www.monografias.com/trabajos12/monogrr/monogrr.shtml#intro (May 2009)
2. (May 2009)
3. (June 2009).
