European Union Trade Law Essay Example for Free

European Union Trade Law Essay Introduction Counterfeiting, piracy and infringements of intellectual property rights are very frequent in the European Union[1]. These take place all over the world and pose a grave danger to national economies and governments. The success of such activities is due to the counterfeiters’ greed for money and also the increase in demand due to consumer ignorance, which makes them prefer these lower cost imitation products[2]. The European Internal Market is characterized by national disparities in the means of enforcing intellectual property rights and counterfeiting, piracy and infringements of intellectual property rights takes advantage of this. These disparities determine the place where counterfeiting and piracy activities within the Community are carried out. The implication of this is that counterfeited and pirated products are manufactured and sold more in those countries which are less effective than others in dealing with counterfeiting and piracy. Therefore this has direct consequences on trade between the Member States[3]. It also has a direct effect on the circumstances controlling competition in the Internal Market. The result of this is that it leads to diversion of trade, distorts competition and creates disturbances in the market. The variation between the systems of penalties, in different nations, creates difficulty in effectively tackling the problem of counterfeiting and piracy[4]. It also results in the problem of improper functioning of the Internal Market. Further, it leads to loss of confidence in economic circles in the Internal Market, resulting in a reduction in investment. Moreover, in addition to the economic and social results, counterfeiting and piracy also hinder consumer protection, particularly in respect of public health and safety[5]. Increasing use of the Internet has enabled pirated products to be distributed very quickly around the globe and last but not the least; this phenomenon seems to be increasingly associated with organised crime. Fighting this trend is therefore very important for the European Community especially when these illegal activities are carried out for commercial purposes or if they result in considerable damage to the right holder. The situation is especially acute in respect of the music industry[6]. Counterfeiting and piracy have resulted in continual and increasing harm being done to business in the form of lower investments and closure of small and medium enterprises; to society by way of job losses and decreasing consumer safety and threat to creativity and governments due to loss of tax revenue. In the case of the   Ã‚  Ã‚  cultural (music, films, videos CDs, DVDs) and software industries the situation has been made worse by the easy access to a global market via the internet[7]. Quite some evidence has been obtained that reveals that counterfeiting and piracy are becoming increasingly linked to organised crime and terrorist activities because of the high profits and the comparatively low risks of discovery and punishment[8]. Reason for action at the EU level At present, as far as legislation in respect of the enforcement of intellectual property rights is concerned, there are important differences in the Member States. These differences are being exploited by Pirates and counterfeiters by carrying out illicit activities in Member States where enforcement mechanisms are applied less effectively. It is hoped that the proposed Directive will reduce counterfeiting and piracy, by reducing differences in national legislations across the EU and by directing Member States to implement tougher sanctions and better remedies against infringements[9]. Intellectual Property Rights or IPR, infringement takes place in most types of rights and virtually any product that can be pirated or counterfeited[10]. It is usually assumed that piracy and counterfeiting take place mainly with regard to some luxury, sports and clothing brands, music and software CDs/DVDs. The reality is otherwise and virtually every IP is being violated at a significant level and that the diversity of fake products is vast, with large software producers as likely to be harmed as small producers[11]. Copyright – Piracy is widespread in all formats with particular focus on digital media, from CDs to VCDs, to DVDs. Further, illegal digital distribution of films, music, pictures, texts and software over the Internet is extensive[12]. Trademarks – Counterfeiting takes place in respect of almost all the products and there fake clothes, footwear, leather goods, watches, toys, cigarettes, pharmaceutical products, car parts, electronic devices, etc. In some countries former business partners continued to use trademarks or designs of the right holders even after the partnership had ended[13]. Technical designs – There have been infringements in respect of design over a vast and diverse range of products like, spectacle frames, wine glasses, sliding doors, textiles, etc[14]. Patents – Many reports were submitted regarding infringements on pharmaceutical products, electrical domestic appliances, industrial machinery, etc[15]. Geographical Indications – In some countries the registration by local producers of trademarks of geographical indications originating in Community Member States is permitted[16]. Data protection –   A number of instances where partial or total lack of protection in respect of information given to national authorities, while lodging patents or during the registration of pharmaceutical products   have come to light[17]. Certain countries like China, Korea, Russia, Turkey, Taiwan, etc, are undoubtedly large scale producers of pirated and counterfeit goods. A major part of their production is exported, however, if there is a large domestic market, part of the production is used for domestic consumption. In developed countries, Uruguay, Brazil, etc, a large number of fake goods is imported. Another category of countries exist, which serve as points of transit for fake goods distributed by international networks[18]. The USA is one such country and despite its being a country generally recognized as having strict and effective enforcement rules and practices, nevertheless, according to official statistics is one of the main countries of origin of pirated or counterfeit goods seized. The reason for this is held to be the vast quantity of counterfeit goods produced in different countries being transported via the US to other destinations. Lastly, in respect of internet based IPR violations, it is very difficult to determine the origin and destination of such traffic. The European Union is an important destination for such goods. In addition to the goods exported into the Community, a sizeable part of the injury caused to the EU right-holders is because of the loss of income and reputation, in the case of fake goods of lower quality, due to sales in any other market. EU countries are also countries of transit for counterfeit goods and pharmaceutical products. The problem is so acute that the EU and the USA have formed a joint strategy to counter it[19]. The efforts of the member state governments are in general ineffective due to lack of a synchronized and effective approach. If the right-holders have the will, the means and the influence to compel the competent authorities to take appropriate action then such measures are successful. The fight against counterfeiting and piracy is hindered not due to obstacles in the substantive law, but due to the unavailability of means the lack of willingness of the enforcement agents to apply the law strictly and efficiently[20]. These enforcement agencies are, frequently, unsuccessful due to manpower shortage, shortage of funds, lack of regulation of the base legislation and general problems caused by insufficient national and international co-ordination including a lack of transparency. To be more specific, this is encouraged by the absence of deterrent punishments for infringers. IPR violations[21] are therefore low risk high profit activities and usually, there is unwillingness to apply criminal sanctions. Further, administrative penalties are in general insufficient to dissuade pirates and counterfeiters and sanctions involving the confiscation of production machinery or the closing of production facilities are not applied systematically. This encourages and perpetuates criminal activities. Trials in these cases are slow, uncoordinated and costly. There are long delays and very few positive results and jurisprudence does not show uniformity. Moreover, the effort is made all the more difficult due to local protection for infringing industries and rampant corruption of the authorities in charge. There is also an absence of trained officials, like legislators, judges, prosecutors, customs officials, police, etc.   A major problem arises due to the public not being fully aware of this problem. Many members of the public do not consider piracy and counterfeiting to be wrong and at times, there is lack of awareness of the fact that using such products is an infringement of the law. In some countries the co-operation of right-holders is accepted in criminal investigations leading to encouraging results, like the seizure of goods and the destruction of criminal networks. For instance the optical disc regulation is a cost-effective way to deal with the piracy problem, because optical disc laws work against infringements of intellectual property rights. Further, these rules make the manufacture of pirated optical discs much more difficult for rogue elements without implementing unjustified regulatory burdens on legal plants. This type of measure has yielded noticeable results in countries like Hong-Kong and the Ukraine. It has been observed that in several instances right-holders have not resorted to the law of the countries where the violations occur, because of a lack of confidence in the local system and also due to lack of ways to defend their rights in a distant country, unawareness of the means available and sometimes due fear of reprisals where criminal organizations are the violators. Several reports have indicated that national producers, accused of infringements are shielded from effective prosecution. In some countries the authorities will unofficially claim that domestic â€Å"job providers† deserve more protection than foreign right-holders. As long as the majority of the public sees IPR violations as a mechanism to obtain basically the same goods at a much lower price, it will not be possible to diminish piracy and counterfeiting[22]. Although, strict action is taken in respect of counterfeit goods which affect consumer health and safety, the sale of imitation luxury brands, software, audio and video products are frequent in many countries and constitute a major attraction for tourists. There is limited public awareness of the bad effects of widespread IPR violations, resulting in loss of foreign investment, discouragement to creativity and research development, loss of international credibility of the countries and the nexus between counterfeiting and piracy with organised crime.[23] In chapter one, a discussion about the response of EU Trade Mark Law against counterfeiting and piracy has been taken up. The causes of piracy and counterfeiting are dealt with briefly. After this, proposed remedies for infringements are considered. Next, the effects of counterfeiting and piracy and the resultant loss to the right holders are described. The enforcement mechanisms for combating piracy and counterfeiting are then analyzed. Subsequently, the different departments and directorates of the EU and their functions and enforcement mechanism are described. Finally, the role of customs department in curtailing piracy and counterfeiting is discussed in brief. As such this chapter, which deals with enforcement mechanisms of the EU trade mark law, reveals that these are not effective enough to deal with this problem. In chapter two, the role of courts in combating piracy is discussed in detail with case laws. After this the working procedures of community trademark court and the complexity of their procedures are discussed. This is followed by a discussion of a number of landmark cases in the history of the struggle against counterfeiting and piracy. Lastly, the latest EU law in respect of these crimes has been discussed in detail. In this chapter, the role of the courts in countering piracy and counterfeiting, though commendable, the disparities in national laws reduce their effectiveness. In chapter three, the responses of parliament in combating the problem of counterfeiting and piracy in the EU have been discussed. In this regard the various acts of parliament that pertain to this problem in various fields have been discussed in detail. These include the various directives, regulations and acts. Moreover, the time after which the trademark will be revoked and the methods by which it will be invalidated have been discussed. Although, parliament has enacted several laws to control the problem of piracy and counterfeiting, the lack of stringency in their enforcement has not been able to control this problem to the level required. Chapter 1    The Response of EU Trade Marks Law against Counterfeiting and Piracy       Causes of Piracy and Counterfeiting Counterfeiting, piracy and infringements of intellectual property rights are constantly on the increase. Their effect is international and they pose a serious threat to national economies. In the European Internal Market, these phenomena take particular advantage of the national disparities that may exist in the means of enforcing intellectual property rights. In other words, counterfeited and pirated products are more likely to be manufactured and sold in those countries that are less effective than others in combating counterfeiting and piracy. Counterfeiting is now a multi-million pound business, run by organised criminals. It is theft, no more, no less. It moves resources from the honest, tax-paying economy to the dishonest, tax-evading economy. It puts the law-abiding employees of brand owning companies out of work. In the worst cases, such as unauthorised pharmaceutical products, aircraft parts or motor vehicle parts, the counterfeit version is sometimes a serious danger to public safety. The principal cause of piracy and counterfeiting is that dishonest traders can make considerable profits, by taking advantage of the creative efforts and investment of others and by selling imitations at a lower cost than those incurred by the producer of genuine products. Clearly, such trade exists due to consumer demand and perception that piracy and counterfeiting are mild violations. Intellectual property theft is not considered by the public to be as bad as fraud, theft or trespass. This is made worse by the failure of the public authorities and commercial organizations in bringing to the notice of the consumers the dangers of using unauthorised products, the harmful social welfare effects from this trade and the imposition of insufficiently restrictive penalties by the judicial authorities. Proposed Remedies    On 15 October 1998, the European Commission presented a Green Paper on the fight against counterfeiting and piracy in the Single Market. The purpose of this paper was to start a debate on this subject with the participation of all the interested parties. The result of this consultation exercise established that the functioning of the Internal Market was being adversely affected due to the differences in the national systems of intellectual property rights[24]. Subsequently, on the 30th of November, 2000 the Commission presented a follow-up Communication to the Green Paper in which it recommended an action plan to deal more effectively with counterfeiting and piracy. Some of the measures proposed were the presentation of a Directive that would bring about a harmonising of the national provisions on the means of enforcing intellectual property rights. The general opinion of the public is that counterfeiting is a harmless and as the price charged for genuine products are higher, there seems to be a general good will towards these counterfeiters. In accordance with section 111 of the Copyright, Designs and Patents Act 1988 of the United Kingdom, the owner of a copyright can give written notice to the Customs and Excise Department that infringed copies of published literary, dramatic or musical works that are expected to arrive in the UK should be prohibited[25]. From the 1st of July 1999, Regulation (EC) 241/1999 has amended a Council Regulation[26] by extending prohibition to goods infringing patents and supplementary protection certificates and to goods under all forms of customs supervision. This regulation contains a process by which members of Community Trade Marks can make a single application for customs intervention in any number of Member States, accordingly, the European Commission reported that between July 1995 and June 1997 customs authorities had taken action in about 4000 cases in comparison to only 2000 in the previous 7 years before the implementation of this Regulation[27]. Many contraband markets evolve through one or more of the following stages: Grey market, or parallel trading; smuggling; counterfeiting and piracy. The markets for contraband cigarettes, alcohol and pharmaceuticals pass through all three stages in their evolution, while the contraband markets for branded apparel and software might progress directly from grey market trading to counterfeiting. Sometimes when no such grey market goods are available organised crime groups may start producing and distributing counterfeit and pirated goods. In this manner a supply chain that is completely in the hands of organised crime groups is formed. Digitization and access to used manufacturing equipment has allowed the counterfeiting and piracy of cigarettes, apparel, computer software and music CDs. Impact of Counterfeiting and Piracy This Green Paper has assessed that 5% and 7% of world trade is due to counterfeited and pirated goods and the fact remains that this problem is more in certain sectors than in others. The Commission on assessment of levels of counterfeiting and piracy with regard to turnovers of some of the sectors concluded that, it is considerable. It opined that the level of counterfeiting and piracy was 35% in the software industry, 25% in the audio industry and 12% in the toy industry. The music, film and software industry, which are the main copyright industries are severely affected by counterfeiting and piracy. This problem occurs in the branded goods sector or in the industries like clothing, footwear, fragrances and cosmetics, luxury goods, motor car parts, aircraft parts, pharmaceuticals, food and drink and industrial chemicals. In France and Italy counterfeiting is more in respect of luxury goods, whereas in Germany the problem is compounded by the manipulated certification of counterfeited goods[28]. The resulting effects of counterfeiting and piracy are, diminished sales, disadvantages to the legitimate enterprises, due to free utilization of their research and development by their competitors, liability due to defective imitation products, free availability of imitations harmed the prestige and goodwill of a brand, initiation of legal proceedings against infringers and continuous supervision of the markets is expensive[29]. Further, the losses caused to the industry will be reflected in the public revenue, thereby raising the unemployment level in that industry[30]. According to the statistics of International Federation of Phonographic Industry, sales of illegal CDs accounted for 14% of the relevant market in the world. In May 2003, the UK music industry pointed out that the sales of pirated CDs exceeded the sales of genuine products. With regard to the responses to the commission’s green paper on combating the counterfeiting the piracy in the international market it was revealed that within the European Union the counterfeited and pirated goods amounted to 5 to 10 % of vehicle spare parts sales, 10% of sales of CDs, 16% of video and DVD film sales and 22% of shoes and clothing sales[31]. The commission referred to a survey conducted by KPMG in France, in 1998, in a proposal for counterfeiting directive. It was reported by Sofres and the Union des Fabricants that the average losses to the businesses, on which survey was conducted, amounted to 6.4% of the total turnover. According, to a study of 2000 by the centre for economic and business research in relation to global anti counterfeiting group, which calculated the average annual reduction in profits, was â‚ ¬ 1,266 million in the clothing and footwear sector, â‚ ¬ 555 million in the perfumes and cosmetics sector, â‚ ¬ 27 million in the toys and sports articles sector and â‚ ¬ 292 million in the pharmaceutical sector[32]. The losses caused by counterfeiting and piracy with regard to tax and excise fields were considerable. The commission’s proposal for a directive on the enforcement of intellectual property rights, accompanied by a paper of estimation revealing that in the phonographic sector VAT losses amounted to â‚ ¬ 100 million that were incurred by the EU Governments as a result of counterfeiting and piracy[33].    Enforcement The Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, states that till now the main concentration of the EC in the field of intellectual property was on harmonization of substantive law, and also on the formation of a unitary right at the community level. National property rights such as trademarks, designs, patents for bio technological inventions, copyright aspects and its related rights have been harmonized. At the Community level, the Commission has taken steps to formulate unitary rights, which become valid instantly throughout the EC and examples of these are Community trademarks and designs. In respect of Community patents’ formation discussions are going on at the level of the Community ministers. In spite of the fact that the harmonization of substantive law on intellectual property rights has promoted the free movement of goods between member states, the methods of enforcing them has not yet been harmonized. Hence, the present directive is required. Counterfeiting is in different forms. For example, in the absence of any permission from the English Football Club, football shirts are manufactured in the UK. This is being done by a company which is in no way connected with the Football Club. The brake pad manufacturers produced 150,000 brake pads to a required specification by the authorized dealer, though his order was for only 100,000 units. All of these brake pads marked with the company’s logo were supplied to unauthorized distributors. The European Commission represents and upholds the interests of the European Union or EU. It is a politically independent institution, which is the motivating power within the EUs institutional system. Its main roles are proposing legislation to the Parliament and the Council; managing and implementing EU policies and the budget; enforcing European law together with the European Court of Justice and representing the European Union internationally. In 1994, the EU implemented the Customs Regulation[34], which controls the imports of fake goods. In 1998, the Commission issued the Green Paper on Combating Counterfeiting and Piracy in the Single Market[35]. Based on the responses to this Green Paper, the Commission formulated an Action Plan, on 30 November 2000. The Action Plan consists of harmonization of legislation among all EU members in order to protect intellectual property rights; better law enforcement training programs; education programs to increase knowledge of the harm caused by buying imitation and pirated products and the beginning of a study for defining a method of collecting, analysing and comparing data on counterfeiting and piracy. In April 2004, this Action Plan was translated into a Directive[36]   for balancing the implementation of intellectual property rights in the Community by a Regulation[37] that improved customs action against counterfeit and pirated goods. It also extended Europol’s powers to include piracy and counterfeiting. In November 2004, the European Commission implemented a Strategy for the Enforcement of Intellectual Property Rights in Third Countries[38]   outside the Community. Departments of the European Commission The organization of the European Commission is into departments, known as Directorates-General or DGs and services, such as legal services. Each DG accountable for a specific area of policy is controlled by a Director-General who is accountable to one of the commissioners. These DGs work out and plan the Commissions legislative proposals and technical co-operation activities. Some of the Directorates General of the European Commission deal with the enforcement of intellectual property rights. Some examples of these are DG Trade, DG Taxation and Customs Union and DG Internal Market. These are discussed in the sequel. Directorate General for Trade The DG Trade has to develop and observe intellectual property policies in agreement with the trade policies of the EU. One of the main objectives of the EU is to implement better recognition and enforcement of intellectual property rights. Its policy with respect to intellectual property consists of implementing IP protection all over the world; promoting sufficient enforcement of IPRs universally and taking part in the war against violations; making certain that IPRs support public health objectives, cooperating with developing and under developed countries where implementation of intellectual property laws is difficult. The Enforcement Strategy focuses on the implementation of existing IPR laws and intends to illustrate, prioritise and organize the instruments available to the European Commission for achieving its goal. It identifies priority countries and the implementation of specific measures in technical assistance, dispute settlement and other sanction mechanisms, collaborating with like minded private entities, international organizations and countries, etc. It provides information for dealing with piracy, counterfeiting and other IPR violations. The objectives of the Enforcement Strategy are: Identification of priority countries. The focus of the EU action will be on the most problematic countries with regard to IPR violations. Such countries will be identified by a regular survey of all stakeholders. Political dialogue, incentives and technical co-operation. The EU will make all efforts to ensure that technical assistance given to third countries focuses on IPR enforcement. IPR mechanisms in multilateral, bi-regional and bilateral agreements. The EU will address enforcement concerns more systematically, within the framework of these agreements and consult trading partners in order to strengthen IPR enforcement clauses in bilateral agreements. Dispute settlement – sanctions. The EU will recall the possibility that right-holders have to utilize the EU’s Trade Barriers Regulation[39] or of bilateral agreements, where there is a violation of TRIPs. Increasing awareness. The public is made increasingly aware of the disadvantages and harm caused by counterfeiting by means of the EU. Creation of public-private partnerships. The EU supports and participates in local IP networks using mechanisms installed by Commission services like the IPR Help Desk and Innovation Relay Centers to exchange information with right-holders and associations. Moreover, it improves co-operation with companies and associations that actively fight piracy and counterfeiting.    Directorate General, Taxation and Customs Union An essential component for the creation of an integrated single European market and a common commercial policy is the Customs Union. Its purpose is to maintain and defend the Customs Union and ensure uniform application of the classification and origin rules. The Directorate General participates in international commercial negotiations which concern the application of the rules of origin and the preferential trading systems. Custom administrators have to not only collect duties but also have to protect consumers and legitimate traders. On the 22nd of July 2003, the Council of Ministers implemented a new regulation in respect of customs and counterfeiting. This Regulation which replaces the previous one[40] includes additional intellectual property rights like plant variety rights, geographical indications. Moreover, period of validity and request forms have been standardised. It has done away with fees and guarantees in order to help small and medium sized companies or SMEs to make free of cost use of the system. It extends the scope of the ex officio procedure, which permits customs authorities to react even if there is no previous application for action. The extension of the use of this possibility is of especial benefit to SMEs. Further, there is an increase in the quality and quantity of information given by customs to intellectual property right holders. This permits samples to be given to the owners of the intellectual property rights.   It permits checking travellers to ensure that the use of couriers does not hide a large flow of goods. Directorate General, Internal Market         Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   The internal market is an essential part of the European Union. It has emerged as a result of the Treaty of Rome. This treaty created a common market in which there was a free movement of goods, persons, services and capital. Unification of the markets of Member States results in economic and political integration. The Treaty establishing the European Community or the EC Treaty brings about a system that ensures undistorted competition in the internal market and approximation of the laws of Member States for the functioning of the common market. This DG mainly concentrates on the knowledge based features of the Single Market and to some extent on the traditional regulatory instruments, which in order to avoid trade barriers harmonize the laws of the Member States. Its goal is to create unitary systems for protecting rights with Community-wide effect. It also focuses on ensuring the proper functioning of the Single Market in the fight against Counterfeiting. In addition, this DG also takes care of debates on the principle of Community exhaustion of trade mark rights and its economic effects on innovation, employment, prices and discussions on Enlargement. In order to get rid of trade barriers and to enable the framework responsive to new forms of exploitation, a considerable amount of intellectual property harmonization has taken place in the EU. The Internal Market DG has to modernise and adapt this acquis to advances in technology or the markets concerned for example, directive on copyright and related rights in the Information Society. Further, it has to improve international negotiations in order to strengthen the IPR internationally. A major contribution in this field by the Internal Market DG has been the Directive, adopted in April 2004, on the enforcement of intellectual and industrial property rights.[41] It makes it mandatory for all 25 EU Member States to apply successful, inhibitive and impartial remedies and penalties against those engaged in counterfeiting and piracy and thereby bring about a level playing field for right holders in the EU. This new Directive brings about uniformity, to the extent possible, in national legislation throughout the EU. This uniformity is respect of civil sanctions and remedies and it is in accordance with best practices in one or several member states. It consists of procedures in respect of evidence and its protection, and interim actions like injunctions and seizure. Right holders have several remedies like destruction, recall or permanent removal of illegal goods, financial reparation, injunctions and damages. It also implements a right to information, which permits judges to compel certain persons to disclose particulars of people involved in counterfeiting and piracy. Under this Directive, member states have to appoint national correspondents to cooperate and exchange information with each other and the Commission. In addition to benefits to right holders, the Directive contains suitable safeguards against abuse, guarantees the rights of the defence and contains references to protect personal data and confidential information. Directorate General, Enterprise DG Enterprise has founded the IPR-Helpdesk[42] whose main aim is to help prospective and current contractors who are participating in European Community funded research and technological development projects concerned with IPR issues. This helpdesk gives advice on Community diffusion and protection rules and issues relating to IPR in international research projects. Another international purpose of the action is to increase knowledge of the European research community on IPR issues, with particular reference to their European dimension. It also conducts several training courses and information seminars on intellectual property matters.    Directorate General Justice, Freedom and Security      Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   The DG Justice, Freedom and Security have common regulatory responsibilities as IPR enforcement is connected with law enforcement both within and outside the Community. This DG is at present working on a legislative project on approximation of national legislation and sanctions on counterfeiting and piracy. Specific field operations are taken care of by the European Anti-Fraud Office (OLAF).    Customs Regulation Moreover, the European Union has introduced a Customs Regulation that empowers Customs officials to seize suspected counterfeit or pirated goods. Under this Regulation, EU Customs Authorities can detain suspected goods, for a short period, before the end of which, the rights owner have to initiate legal action against the alleged counterfeiter or pirate. Proper implementation would make this Regulation a very powerful weapon for rights holder with a good, anti-counterfeiting, intelligence network. This move to enact the Directive on enforcement of intellectual property is subsequent to the UK’s recent effort to tackle the problem of piracy by enacting the Copyright, Etc. and Trade Marks (Offences and Enforcement) Act 2002. The implication of this law is that those who deal in pirated goods and specifically, those who produce such goods and those who distribute them, will get stiffer fines and if the crime is serious enough they may be imprisoned. The requirement of this Directive will be that each of the Member States will have to apply the same procedure in infringement proceedings and this would include damages awarded, injunctions, provisional measures and sentencing[43]. Intelligence, appropriate criminal sanctions and Courts that enforce these sanctions, are essential factors in combating counterfeiting. In the absence of precise information on the source, time of supply and place of transfer it is very difficult to stop their entry onto the market. In order to limit piracy within the EU the EC has revealed plans to put into practice an anti-piracy law that aims at harmonizing anti-piracy law throughout the Member states. This chapter has dealt with the enforcement of trade mark laws, in order to prevent piracy and counterfeiting. Evidently, this problem cannot be curbed because of the disparities in the domestic laws of the member states. As such the pirated and counterfeited goods, though not produced in the EU, freely flow into it with great damage being done to the right holders. In the next chapter the role of the courts in dealing with this problem will be discussed. Chapter 2       Responses of the Courts to Counterfeiting and Piracy    In the absence of effective methods for enforcing intellectual property rights, innovation and creativity will be discouraged and investment will be reduced. It is therefore necessary to ensure that the substantive law on intellectual property, which is a part of the acquis communautaire, is applied effectively in the Community. The acquis communautaire includes all the treaties, regulations and directives passed by the European institutions as well as judgments laid down by the Court of Justice, which member countries have to adopt, implement and enforce in order to be admitted to the EU[44]. The means of enforcing intellectual property rights are of vital importance for the success of the Internal Market. The discrepancies between the systems of the Member States in respect of the means of enforcing intellectual property rights are harmful to the proper functioning of the Internal Market. These discrepancies also make it impossible to ensure that intellectual property rights have the same level of protection throughout the Community[45]. This situation hinders free movement and does not create an environment that is favorable to healthy competition. Formerly, the commission’s ability for providing criminal sanctions under the first pillar was suspect. Hence, the EU commission submitted a draft directive, which entails the harmonization of law to facilitate the single market. The directive which is the foundation instrument would have been adopted by the council and the parliament under the co decision method. Moreover, the commission has submitted a draft framework decision, which contains criminal sanctions. A framework decision is a third pillar instrument that is adopted by the council exclusively. Hence, the parliament has not taken any part in this process. The commission was disinterested in splitting up the draft legislation into two legal instruments, a directive and a framework decision; hence, it initiated proceedings against this mechanism before ECJ. On the 13th September 2005, the ECJ, in its judgment in commission v council[46] held that provisions of criminal law that promote the effective implementation of community law come under the first pillar. After this decision, the European Parliament’s involvement in the legislative process has been on the increase. Due to this milestone decision, the European Commission has presented a second draft directive on 28th April 2006. This legislation consists only of one legal instrument, a directive. The proposal of the commission has to be adopted by the European Parliament and the council under the co decision procedure[47]. The latest changes come from the case law of the European Court of Justice rather than the European legislator. Regulation 1383/2003 applies at the EU’s external borders to export, import, transshipment and external transit. This is according to Article 1 (1) of Regulation 1383/2003. Most of the border measure cases concern to transit and transshipment cases and the provision of Article 1 (1) is a â€Å"TRIPS plus† provision. This is because it transcends Article 51 of the TRIPS Agreement, which is restricted to imports. However, recent developments in the case law of the ECJ may bring about a change this approach. In Class International[48], the ECJ held that the external transit of grey market goods is not the use of a trade mark. Counterfeited and pirated goods under Regulation 1383/2003 are defined much more narrowly than the scope of protection awarded to owners of trade mark, copy and design rights. In Article 2 (1) (a) of Regulation 1383/2003 counterfeited goods are defined as â€Å"goods [] bearing without authorisation a trade mark identical to the trademark validly registered in respect of the same type of goods, or which cannot be distinguished in its essential aspects from such a trademark.† therefore, customs in order to take border measures have to be in the presence of a semi identical sign applied to identical goods and this is at variance with the Community law concept of risk of confusion normally resorted to in trade mark law. The definition of pirated goods, as per the provisions of Article (2) (1) (b) of Regulation 1383/2003, is the following, â€Å"goods which are or contain copies made without the consent of the holder of a copyright or related right or design right.† Further, the border measure Regulation states that the infringing goods have to be copies, whereas Community law employs the concepts of reproduction and designs. The danger with the definition in Regulation 1383/2003 is that goods blocked by customs for infringing an IPR may not be classified under this very restrictive definition of counterfeited and pirated goods. This could result in the courts being forced to hold that these goods were wrongly confiscated. This is very important because in practice the customs authorities do not follow the restrictive definitions of the border measure Regulation. The definition of goods infringing a trade mark, copyright or design right should be analogous to the definition of other infringing goods, where the Regulation takes recourse to the Community or national law. If there is a challenge to a trade mark registration for non-use, then the proprietor has to demonstrate, under both the UK law and the Community Trade Mark Regulation, authentic use in the applicable period or produce valid reasons for non use. In the trade mark LABORATOIRE DE LA MER the latest Court of Appeal decision established clear guidelines in respect of registered proprietors and parties considering applications for revocation[49]. In this case an application was made by La Mer Technology, Inc, which had registered a number of UK trade marks as â€Å"DE LA MER†; to revoke Goemar’s registration for the trade mark LABORATOIRE DE LA MER in the UK that was in respect of perfumes and cosmetics containing marine products in class 3. In the preliminary hearing the revocation application was dismissed as its use by the five sales was real and amounted to genuine use of the registered mark in the relevant non-use period. La Mer’s appeal made the High Court seek interpretation from the ECJ under Article 234 of the EEC Treaty. In January 2004 the ECJ gave its decision, wherein it held that the answers to the questions raised could be inferred from its earlier judgement[50] in the case of MINIMAX. In other words a registered proprietor of a trade mark defending an application for revocation on the grounds of non-use has to furnish evidence of genuine use in an unequivocal form and easily understood form to the tribunal considering the case, and proof that it is not for merely safe guarding the registration. A slogan, while being registered, should be accorded the same measure of scrutiny as any other word mark. In Das Prinzip Der Bequemlichkeit or The Principle of Comfort[51], this principle was upheld by the ECJ. Nevertheless, applications for slogan marks at the OHIM[52] may be objected to for being descriptive of the goods or services or for being devoid of distinctive character. The Court of First Instance held that the lack of evidence of promotional use of the mark did not signify that the slogan indicated the commercial origin of those goods or services. It also held that it was essential to consider the slogan in connection with the goods and services, and whether it was capable of being used in a descriptive or promotional context. Though the applicant showed that this mark had been registered in non-EU countries, the CFI refused to change its decision and held that the Community trade mark regime is an autonomous system and all assessments must be exclusively on the basis of the CTM Regulation, as interpreted by the Community judicature and not on precedent or on the basis of what had happened in other countries. The Board of Appeal has refused to take account of precedent slogan marks and the mark FUELING BRAND POWER[53], applied for in connection with a range of services in Classes 35, 41 and 42 was refused. The OHIM were able to show examples of third party use only of the words â€Å"FUELING† and â€Å"BRAND POWER†, separately. From the preceding it becomes clear that slogan marks are likely to be considered to be unregistrable if they are not imaginative or creative. On the basis of public opinion the OHIM considers such slogans as not having a distinctive character and this opinion is highly subjective. For this reason, registrable slogans should have a highly individualistic nature and this should be in addition to what would in general be necessary for a word mark to be registered. This is in direct contrast to the ECJ’s statements in relation to â€Å"The Principle of Comfort†. Notwithstanding this, if there is no evidence that the mark has obtained a distinctive character then such slogans may not be accorded registration by the OHIM[54]. In Signal Communications Ltd v Office for Harmonisation in the Internal Market (Trade Marks, Patents and Designs (OHIM)[55], The applicant wanted the Court of First Instance to annul the contested decision and pass such orders as would amend the Community trade mark application No 837096 to show TELEEYE instead of TELEYE. Under Article 63(6) of Regulation 40/94, the office has to take the necessary measures to comply with judgments of the ECJ. Hence, the Court of First Instance cannot issue directions to the Office. The applicants argument was based on Article 29(1) of Regulation No 40/94, which states that application for the Community trade mark and the trade mark relied on for the right of priority must be the same. In case it was unclear to the examiner that the applicant was applying for the Community trade mark with the same spelling as that used in the United States trade mark application should have been obvious to the examiner then changing the discrepancy between these two trade marks does not amount to a significant modification. In practice the importance of intellectual property rights depends on whether the holder can take effective measures to prevent others from infringing them. The right holder can not only take the infringer to court but he can also warn the infringer to desist from the acts in question. Sometimes, the main objective may be to arrive at an agreement with the infringer, in which case the right-holder will simply inform the infringer of the position with regard to IP rights and offer to discuss terms and conditions. Hence, judicial enforcement is a major test of effectiveness for the rights given by the intellectual property system. A vital necessity is that successful protection against infringement should be obtainable at reasonable cost to the right holder. However, if such effective judicial procedures are already in place then these procedures by themselves already ensure that IP rights are not violated. The right to prevent others from doing certain specific acts is the basis for the legal protection of intellectual property. A right-holder can obtain an injunction to prevent an infringer from manufacturing or distributing the infringing product, from using it or performing certain other acts. Such emphasis on the right to disallow differentiates intellectual property protection from the protection offered in other civil law matters concerning the breach of an owners rights. In civil courts the usual sanction is the award of compensation to the plaintiff for infringements of his rights which have already transpired, usually in relation to personal injury or property damage. The European domicile system was unable to generate a large body of European case law, because first, judgments revoking or cancelling a registered industrial property right had to be taken by the courts of the country for which the right had been granted. As the defendants in patent infringement proceedings generally file a counterclaim for invalidity, the prospects of internationalizing the domicile principle are limited. Divergence in the case law of the EU member states is due to the cross-border injunction. Second, hindrance to liberalizing the domicile principle takes place due to cross-border competence being limited to the courts of the country where the defendant is lives or mainly conducts his business. Such competence does not extend to the country where the infringing act occurred, which, is of particular importance to the plaintiff[56]. Complexity An infringement action brought before a Community trademark court makes it extremely easy to enforce registered Community trademarks across the whole of the European Union. In case the court decides that there has been infringement, this judgment will be imposed in all EU member states in which infringement took place. Further, the damages award will be based on all such infringing acts. Finally, an injunction against any further infringement may be obtained for the whole European Union. In November 2004 the Alicante Juzgado de lo Mercantil, acting as Community Trademark Court of First Instance, issued the pan – EU injunction in a trademarks infringement case, in respect of the selling of fake VIAGRA and PFIZER on the internet. Since the respondent was absent at the time of the hearing, the court had issued an ex parte injunction and made an order consisting of broad measures of protection. The court ordered the defendant to cease all use of terms like VIAGRA and PFIZER, in respect of the selling of any of the products in the EU, or on the internet and also ordered the defendant to desist from using the term VIAGRA as a domain name. In IMS Health Inc v Commission of the EU Communities[57], it was held that the aim of intellectual property protection is the right to exclude. On some occasions the legal capacity to exclude is referred to as monopoly. From this situation much controversy spins around the interaction of Intellectual Property Rights and Competition Law. Competition authorities have made efforts to balance the protection of intellectual property rights and market competition. Europe has taken these issues into consideration in a recent set of decisions implicating a supplier of pharmaceuticals sales data and its copyright protected data matrix. The balance between competition regulations and IP rights remains a topic for debate in most of the nations including European countries. If an IP right blocks entry into a genuinely needed facility for competing, there may be lawful public argument in order to compromise the IP right for promoting competition. However, such compromise should not be a matter of mere public convenience or a bare recommendation to the competitors, where competition is not threatened. Even IP rights serve a valuable public policy objective to encourage and reward creativity and to safeguard public interest. Policy makers should make sure that interference in the matter of protecting competition fulfils that objective instead of the less productive goal of simply making life easier for competitors.    In Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik[58], Anheuser-Busch Inc, instituted proceedings in the Finnish courts to prevent the defendant from using certain trade marks, which were claimed to have been infringed. In an appeal to the Supreme Court, the matter was stayed for making a reference to the ECJ on issues concerning the interpretation of TRIPS agreement. The ECJ held that in case of a disagreement between a trademark and sign that was suspected to have infringed the trademark TRIPS agreement will be applied, where the disagreement arose before the date of application of TRIPS but continued beyond that date. The relevant laws of Finnish trade marks had to be interpreted as far as possible in the wording and purpose of the provisions of Directive 89/04 on trade marks and TRIPS. A trade name could constitute a sign within the meaning of article 16(1) of TRIPS[59]. The exceptions to article 17 of TRIPS were targeted to make a third party able to use a sign which is similar to a trade mark that indicates its trade name, provided that such use was according to the sincere practices in industrial and commercial matters. A trade name which was unregistered but established by its use in the member state in which the trade mark was registered could be considered as an existing prior right as per the meaning of the third sentence of Article 16(1) of TRIPS[60]. The Silhouette Case This legal ambiguity has resulted in disagreements and in the case of Austrian sunglasses Silhouette, the ECJ ruled that community wide exhaustion is the appropriate interpretation in accordance with the 1989 Directive[61]. This judgement indicates that Article 7(1) of the Directive barred Member States from implementing an exhaustion regime that was wider than community exhaustion. In the Silhouette case the Austrian discount chain, Hartlauer, bought a consignment of Silhouette sunglasses from a Bulgarian company, which had purchased the goods from Silhouette International in Austria. Silhouette claimed that the sale of the sunglasses was subject to the stipulation that these sunglasses should not be re-imported into Austria. Hartlauer were taken to court, in Austria, on the charge that the trademark rights had not been exhausted. The ECJ held that the 1989 Trademark Directive was to be considered as a complete harmonization of the Member States’ rules for trademarks. In accordance to this ruling all Member States have to apply the principle of regional exhaustion. Nevertheless, such states that are in the EEA but outside the EU need not do so. Thus the ECJ has ruled that exhaustion occurs only when the products are being sold in the EEA and this establishes that the principle of international exhaustion is not applicable within the EEA if the goods had been first placed on non EEA markets. Hence, the rights owner was able to enforce its rights in the Silhouette trademark against the defendant, Hartlauer, even though these products were genuine and had been placed on the Bulgarian market with the consent of the trademark owner. The issue of consent was adjudged in the Sebago case, where it was held that consent under Article 7(1) of the Directive had to necessarily relate to each item of the product in respect of which exhaustion is pleaded. The Swedish Competition Authority, in a report, referred to the ruling of the EFTA Court in the Maglite case[62] which preceded the Silhouette ruling by six months. In this case a Norwegian company was importing Maglite lanterns from the US. The Norwegian general agent sued the importer for breach of Norwegian trademark law as well as the EU Trademark Directive. The EFTA Court held that the EEA agreement did not entail any common trade policy in relation to a third country and that a regional exhaustion requirement would severely restrict freedom of trade in respect of third countries. According to the Maglite and Silhouette rulings though regional exhaustion is applied in the EU, non-EU members of the EEA can resort to parallel imports into the EU through those countries legally. This could result in considerable legal uncertainty[63].    Bibliography.    Anderson, Ross. The Draft IPR Enforcement Directive – A Threat to Competition and to Liberty. Fipr. Retrieved from http://www.fipr.org/copyright/draft-ipr-enforce.html on September 23, 2006 Annual Enforcement Report 2004. The patent Office. DTI United Kingdom. Retrieved from http:// www.gov.uk/about/enforcement/annreport04.pdf on September 23, 2006 Case of Ansul B.V. v Ajax [2003] ECR I-2439 [2003] RPC 40 ECJ Baker W, Raymond. Case Study Belarus. Retrieved from http://www.capitalismsachillesheel.com /BelarusCaseStudyPDF.pdf on September 23, 2006 Teleye Case R 219/1998-1 Deutsche Post EURO EXPRESS GmbH v. OHIM (EUROPREMIUM) ]Case T-334/03 Nestlà © Waters France v OHIM (Shape of a bottle)Case T-305/02 Eden SARL v OHIM Case T-305/04 Shield Mark v. Joost Kist. Scents Case C-273/00 Societe des produits Nestle SA v Mars UK Ltd Case C-353/03 Case C-39/37, Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc, paragraph 17 Case R 152/2000 Silhouette v Hartlauer Case c-355, [1998] CEC 676 Sebago et Ancienne Maison Dubois et Fils v. GB-Unic SA Case C-173/98 Case No. 4 Ob 95/91, Decision of the Austrian Supreme Court (Nov. 5, 1991), reprinted in 25 INT’L REV. INDUS. PROP. COPYRIGHT L. 126 (1994) (protecting design of Le Corbusier lounge chair under copyright law) Citicorp v. OHIM Case T-320/03 Class International case C-405/03 Class International / Colgate-Palmolive Company and others (C-405/03) Commercial Piracy Report 2003. ifpi. Retrieved from http://www.ifpi.org/site-content/antipiracy/piracy2003-priority-territories.html on September 23, 2006 Commission Regulation No 1891/2004 (21/10/04) Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights Council Regulation 40/94 on the Community Trademark (Dec. 20, 1993), 1994 O.J. (L 11) 1. Council Regulation 40/94 on the Community Trademark (Dec. 20, 1993), 1994 O.J. (L 11) 1 Commission v. Council case C-276/03 Commission v France C-23/99 (26 September 2000) Council Regulation (EC) No 792/2002 of 7 May 2002 Countering Counterfeiting. A guide to protecting enforcing intellectual property rights,   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Counterfeiting Intelligence Bureau, International Chamber of Commerce, 1997. Counterfeiting and Organized Crime. Union Des Fabricants copyright 2003. Retrieved   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   from http://www.interpol.int/Public/FinancialCrime /IntellectualProperty/Publications   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   /UDFCounterfeiting.pdf#search=%22counterfeiting%20and%20organized%20crime%22   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   on September 23, 2006 Current and Emerging Intellectual Property issues for Business: A Roadmap for Business and Policy Makers. Retrieved from http://www.iccwbo.org/policy/intellectual_property/pages/IP_Roadmap-2005.pdf on September 23, 2006 Decision No 276/1999/EC of the European Parliament and of the Council of 25 January 1999 Directive 98/71/EC of the European Parliament and of the Council on the Legal   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Protection of Design (Oct.28, 1998), 1998 O.J. (L 289) 1 Directive 2006/24/EC of the European Parliament and of the Council 15 March 2006 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 Directive 2000/46/EC of the European Parliament and of the Council of 18 September 2000 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 Donoghue, Andrew. Counting the cost of Counterfeiting.. ZD Net News publication dated May 22, 2006 ENANTON/ENANTONE v ENANTYUM Case R 222/1999-2, paragraph 47    EU backs tighter rules on piracy. BBC NEWS. March 9, 2004. Retrieved from http://news.bbc.co.uk/2/hi/technology/3545839.stm on September 23, 2006 European private and public sectors join forces†¦intellectual property abuses. February 27, 2003. Retrieved from http://www.deltha.cec.eu.int/en/news_2003 /eu%20IPR%20Network.pr.en_27_2_03.htm on September 23, 2006 First Council Directive 89/104 to Approximate the Laws of the Member States Relating to Trade Marks, art. 2., 1989 O.J. (L 40) 1, 2.    FUELING BRAND POWER Case R62/2005-1    Gillette Company v LA-Laboratories Ltd C-228/03, ECJ (17 March 2005) Ide Line Aktiebolag v. Philips Elecs. NV, [1997] E.T.M.R. 377 (Stockholm Dist. Ct. 1997).    IFPI Music Piracy Report Retrieved from http://www.ifpi.org/site-content/library /Piracy2000.pdf on September 23, 2006    IMS Health Inc v Commission of the European Communities (Case T-184/01 R), Vesterdorf P, 10 August 2001 Industry welcomes new EU – US joint strategy to fight †¦ counterfeit and pirate goods. Vienna 20 June 2006. Retrieved from http://www.bsa.org/poland/press/newsreleases /polandpressrelease20june2006.cfm on 23 September, 2006 INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE 2005 SPECIAL 301 REPORT Retrieved from http://www.iipa.com/rbc/2005   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   /2005SPEC301UKRAINE.pdf on September 23, 2006. Lidl Belgium GmbH Co KG v Etablissementen Franz Colruyt NV Case C-356/04, (29   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   March 2006) Maglite 1997 E-2/97 EFTA Court report 127. Montres Rolex S.A. and others (Case C-60/02, 7 January 2004) Montex Holdings Ltd and Diesel S.p.A. (C-281/05, 2 June 2005). Michelle Warren, Jeans case between Tesco and Levis may be paused, Sunday Business   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚     Ã‚  Ã‚  Post, 7 November 1999. Pat Treacy Anna Wray â€Å"IP Crimes: The Prospect of EU – Wide Criminal Sanctions – A Long Road Ahead?† EIPR [2006] Proposal for a European Parliament and Council Directive on the Legal Protection of   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚     Ã‚  Design (Dec. 3, 1993), 1994 O.J. (C 345/14) 1. Proposal for a European Parliament and Council Regulation on the Community Design   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚     Ã‚  (Dec. 3, 1993), 1994 O.J. (C 29/20) 1. Philips Elecs. NV v. Remington Consumer Prods, 1998 R.P.C. 283 (Eng. Ch.) Polo Lauren/Dwidua I (Case C-383/98) Reckitt Colman Prods. Ltd. v. Borden Inc., [1988] F.S.R. 601 (U.K. H.L.) (lemon   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   shaped container). Regulation (EC) No 733/2002 of the European Parliament and of the Council of 22 April 2002 Council Resolution of 25 March 2002 Regulation (EC) No 45/2001 Rioglass v Transemar C-115/02 (23 October 2003) Signal Communications Ltd v Office for Harmonisation in the Internal Market (Trade Marks, Patents and Designs (OHIM) Case T-128/99 Siemens AG v VIPA Gesellschaft fà ¼r Visualisierung und Prozeßautomatisierung mbH,Case C-59/05, ECJ (23 February 2006) Tesco v Levi Strauss joined cases C- 414/ 99 to C- 416/99 ECJ 20 November 2001. Testimony March 8, 2006. Piracy and Counterfeiting in China. Retrieved from http://www.nam.org’s_nam/bin.asp on September 23, 2006 Trademark Law Treaty Implementation Act, Pub. L. No. 105-330, 112 Stat. 3064 (1998), tit. I. Trade Dress Protection Act, H.R. 3163, 105th Cong. (1998). World Intellectual Property Organization Geneva. Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications. SCT/5/3 DATE: June 8, 2000    Zino Davidoff SA v. AG Imports Limited, CH-1998 D No. 4517 [2005] EWCA Civ 978 – Laboratoires Goemar SA and La Mer Technology Inc http://www.europa.eu.int/comm/internal_market/en/indprop/patent/index.htm http://europa.eu.int/ISPO/legal/en/ipr/ipr.html http://europa.eu.int/eur- ex/LexUriServ/site/en/oj/2004/l_328 /l_32820041030en00160049.pdf http://trade-info.cec.eu.int/doclib/docs/2004/august/tradoc_113229.pdf http://www.publications.parliament.uk/pa/cm199899/cmselect/cmtrdind/380/38013.htm#n291 http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2004 /l_328/l_32820041030en00160049.pdf http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/European%20Commission.htm http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0046en01.pdf, p. 9, Part Two, Section A IPR-Heldesk.org http://europa.eu.int/eur-ex/lex/LexUriServ/site/en/oj/2004/l_360 /l_36020041207en00080011.pdf http://www.ecta.org/position_papers/Directive_draft_criminal_measures_2006.pdf. http://www.dyoung.com/newsletters/tmnews1105.htm http://www.epip.eu/papers/20030424/epip/papers/cd/papers_speakers/Stauder_Paper_EPIP_210403.pdf http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=enSubmit=Submitdocrequire=judgementsnumaff=c-245datefs=datefe=nomusuel=domaine=mots=resmax=100 http://www.europa.eu.int/comm/internal_market/en/indprop/patent/index.htm http://europa.eu.int/ISPO/legal/en/ipr/ipr.html http://europa.eu.int/eur-lex/lex/LexUriServ/site/en /oj/2004/l_328 /l_32820041030en00160049.pdf http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=enSubmit=Submitdocrequire =judgementsnumaff=c-245datefs=datefe=nomusuel= domaine=mots=resmax=100

The Significance Of Larmor Frequency In Mri English Language Essay

The Significance Of Larmor Frequency In Mri English Language Essay When a magnetic field is applied to an atom, the nuclear spin will be orientated with the field. The spin allows absorption of a photon of frequency ÃŽÂ ½L, which is dependent on the magnetic field applied. ÃŽÂ ½L = ÃŽÂ ³ * B In the equation above, B is the magnetic field, ÃŽÂ ³ is the gyromagnetic ratio and ÃŽÂ ½L is the larmor frequency. When atoms are placed in a non-uniform magnetic field, the nuclei of the atom have varying larmor frequencies due to the equation. (b) Why does the RF field have to be applied exactly at the Larmor frequency to tip the net nuclear magnetisation? Some nuclei are said to be parallel to the magnetic field with some nuclei orientated anitparallel which are at a higher energy state. The energy difference between the two states is give by ΆE. When this energy difference is applied there is a transition from the lower energy level to the higher energy level. There is now more nuclei in an anitparallel orientation. When using the RF pulse it has to be resonance with the Larmor frequency. As the RF energy is applied the nuclei will orient themselves in the anitparallel position, this results in more nuclei being in a higher energy state. (c)Classically the spin population states are divided into parallel and anitparallel: what is the approximate population difference between these two states at 1.5T? In order to calculate the population difference use the larmor equation to find the frequency at 1.5 T f = ÃŽÂ ³B Where ÃŽÂ ³ = 42.6 MHz/T B= 1.5 T f = (42.6 x 10 ^6) Ά¡ (1.5) f= 63.9 x 10^6 secà ¢Ã‚ Ã‚ »Ã‚ ¹ Now use the following equation ΆE = hf to find the difference in population where h is plancks constant which is 4.14 x 10^- 15 eVΆ¡sec f is 63.9 x 10^6 secà ¢Ã‚ Ã‚ »Ã‚ ¹ ΆE = hf ΆE =4.14 x 10^-15 )(63.9 x 10^-6 secà ¢Ã‚ Ã‚ »Ã‚ ¹) ΆE = 2.65 x 10^-7 eV (d) Describe what is meant by the Free Induction Decay (FID) of the MR signal In the rotating frame, the net magnetisation vector decays as spins lose phase coherence and begin to cancel each other out. They do this because they experience slightly different magnetic field strengths due to interaction between spins (via their own oscillating magnetic fields). Slightly different magnetic fields means slightly different precession (Larmor) frequencies. This causes some spins to lag behind the average, and some get ahead of the average. Eventually the spins point in arbitrary directions and the Mxy component of the net magnetisation vector is lost. This decaying, oscillating signal is the free induction decay.  [1]   (e) Describe what is meant by spin-lattice relaxation. How is it described mathematically? One relaxation process involves a return of the protons to their original alignment with the static magnetic field. This process, called longitudinal or spin-lattice relaxation, is characterized by a time constant T1. The term spin-lattice refers to the interaction of the protons (spins) with their surroundings (the lattice or network of other spins). This interaction causes a net release of energy to the surroundings as the protons return to the lower energy state of alignment.  [2]   The spin- lattice relaxation is given by M_z=M_0 [1-exp (-t/T_1)] where M_z and M_0 components of the magnetisation vector and t is the time. (f) Describe what is meant by spin-spin relaxation. How is it described mathematically? Before a radio wave is applied, the precessional orientation of the protons is Random. The application of a radio wave brings the protons into synchronous precession, or in phase. When the radio wave is switched off, the protons begin to interact with their neighbours and give up energy in random collisions. In so doing, they revert to a state of random phase. As the protons revert to random orientation, the bulk signal decreases because the magnetic moments tend to cancel each other. This process is called transverse or spin-spin relaxation and is characterized by a time constant T2.  [3]   The spin-spin relaxation is given by M_x, y=M_0 [exp (-t/T2)]. (g) Using the spin echo sequence, describe how the timing parameters can be adjusted to reflect T1, T2 and proton density in the image. Question 2 Figure 2.1 : Image given in assignment (i)What are the two user variable parameters marked as a and b? Explain briefly in general terms how a and b might be chosen to achieve different image contrast weightings. The user variable a is the echo time and b is the repetition time. When there is a short repetition time and short echo time the result will be a T1-weighted image. A long repetition time and short echo time will give a proton density image, and long repetition time and long echo time will give a T2-weighted image. (ii) Identify the gradients markedd. Explain what is illustrated by the dotted horizontal lines in this part of the diagram. What user variable parameter directly influences what is happening ind? Briefly relate this to total scan time. The gradients markedd represents the phase encoding gradient. The user variable parameter that directly influences the phase encoding gradient is the frequency encoding gradient. The total scan time for a standard spin echo or gradient echo sequence is number of repetitions x the scan time per repetition (means the product of repetition time (TR), number of phase encoding steps, and NSA).  [4]   (iii)Identify the gradient e. If all other variables are considered fixed what user variable parameter would change the strength of this applied gradient? The gradient is e is the slice selection gradient. The user variable parameter that would change the strength of this applied gradient is the slice thickness parameter. The slice thickness is governed by the following equation: thk = BWtrans / (à Ã¢â‚¬ °0 ·GS) Where thk is the slice thickness, BWtrans is the transmitted RF bandwidth (the range of frequencies it covers), 0 is the gyromagnetic ratio and GS is the magnitude of the slice selection magnetic field gradient. So, slice thickness is inversely proportional to GS; increasing GS will yield a thinner imaging slice.  [5]   (iv) What is the waveform show in g? Give a brief description of how the signal from g is captured by the MR computer system and subsequently processed to form an image. The waveform g represents the echo signal received. Question 3 (A) Describe briefly the physical basis of the following MRI artefacts: Truncation or Gibbs Gibbs or truncation artefacts arise from going from a bright are to a dark area resulting in bright or dark lines which are present at parallel and adjacent borders where there is a sudden change in intensity. This type of artefact is associated with the number of steps used in the fourier transform to reconstruct the image . To minimize the effect of Gibbs or truncation artefacts more encoding steps are performed in order to lessen the intensity and narrow the artefacts. Figure 3.1 : Diagram shows the Gibbs effect resulting from a Fourier transformation of a sharp change in image intensity Zipper There are various causes for zipper artefacts in images. Most of them are related to hardware or software problems beyond the radiologist immediate control. The zipper artefacts that can be controlled easily are those due to RF entering the scanning room when the door is open during acquisition of images. RF from some radio transmitters will cause zipper artefacts that are oriented perpendicular to the frequency axis of your image. Frequently there is more than one artefact line on an image from this cause. Other equipment and software problems can cause zippers in either axis.  [6]   Figure 3.2 : When this image was taken the scanner room door was left open during the acquisition causing the zipper artefacts shown. Chemical shift Chemical shift arises from a variation in the resonance frequency due to the nuclear spin of protons in different environments like fat or water. Due to the magnetic shielding of different protons , will result in different resonance frequency and hence lead to miss registration of protons in the same slice during the fourier transform. The chemical shift artefact will appear as bright or dark band at the edge of the anatomy. High field strength increases the miss registration of the protons. Figure 3.3 : In this image the chemical shift artefact is seen as a small bright line in front of the femoral bone. (b) In a magnetic field, fat precesses at a lower frequency that water giving rise to a Chemical shift. At 1.5T, the frequency difference is 210Hz. For an image matrix of 256 x 256 and a receive coil bandwidth of 16 kHz, calculate the size of the shift between water and fat in pixels. To find the chemical shift use the following equations d = (n nref) x 106 / nref But know that nref = gBo The equation now becomes d = (n nref) x 106 / gBo where nref is resonance frequency g is gymagnetic ratio where g is 42.58 MHz/T Bo is magnetic field strength where Bo is 1.5 T n is resonance frequency of second component d is chemical shift difference Can now put these values into the above equations. Given that the frequency difference is 220 Hz d = (n nref) x 106 / gBo d= (220) x 106 / (42.58 x 106) (1.5) d= 3.44 ppm Question 4 Using diagrams where appropriate, briefly describe k-space under the following headings What does k-space represent K space corresponds to a matrix of the MR data and represents the image before processing like fourier transforms are performed. Within k-space each line represents a measurement, with a separate line for varying phase gradients. A line of height 0 represents a line with no phase gradient. Figure 4.1: In this diagram, Kx represents frequency, Ky represents phase directions. Each measurement is positioned at a different Ky coordinate (height) How is k-space normally filled The polarity and amplitude of the frequency and phase encoding gradients directly affect how k-space is filled. The amplitude of the frequency encoding gradients establish how far the k-space goes to the left or right and therefore gives the field of view of the image in the frequency direction. Positive values go from left to right while negative values go from right to left. The amplitude of phase encoding gradient estimates how far up and down k-space is filled up and down in the phase direction and hence determines the field of view in this direction. Positive values fill the top half while the negative values fill the bottom half. What determines k-space co-ordinates The k-space location (kx and ky coordinates) of data is governed by the accumulated effect of gradient events and excitation pulses.  [7]   How does an absence of data in k-space affect the image If there is some date missing in k-space this will result in a loss of resolution of the image. Question 5 (a) Describe four important safety hazards in MRI. Static magnetic fields Depolarization can be caused by voltages induced in flowing blood and the movement of muscles in the heart which can be detected by an electrocardiogram. In order to minimize this effect the magnetic field strength kept withing the following limits. 2.5 T for body of patients; 0.2 T for arms and hands of staff and 0.02 T for whole body of staff. Switching of the gradient magnetic fields Involuntary muscular contraction, breathing difficulties and ventricular fibrillation arise from eddy currents induced in the body. MRI should not be performed on patients with implants, as it can cause harm to the patient. In the case of strong fields, taste sensations can be experienced by the patient while flashes of light can be present on the patients retina. Magnetic field build up is usually 1-5 Ts to avoid symptoms. Radiofrequency fields In strong static fields, at high frequencies, heating can occur. The temperature should not rise above 1 degree Celsius on the patients skin. In order to minimize the heating affects the specific absorption ratio should not surpass 0.4 W/Kg and pulsed RF field should not go beyond 70 W Mechanical attraction of ferromagnetic objects This changes with the square of the magnetic field and inverse of the distance. Metal objects are made into projectiles if they come into the fringe field. For this reason non-magnetic material should be used. (b) What is meant by SAR? Define the units used to measure this parameter. The Specific Absorption Rate is defined as the RF power absorbed per unit of mass of an object, and is measured in watts per kilogram (W/kg). The SAR describes the potential for heating of the patients tissue due to the application of the RF energy necessary to produce the MR signal. Inhomogeneity of the RF field leads to a local exposure where most of the absorbed energy is applied to one body region rather than the entire person, leading to the concept of a local SAR.  [8]   What is the whole body limit? 4 W/kg averaged over the whole body for any 15-minute period.  [9]   Which sequences are a particular concern and may give rise to radio-frequency effects? Radio frequency effects occur when a patient is exposed to static magnetic fields in MRI. The Radio frequency pulses mainly produce heat, which is absorbed by the body tissue. If the power of the RF radiation is very high, the patient may be heated too much. To avoid this heating, the limit of RF exposure in MRI is up to the maximum specific absorption rate (SAR) of 4 W/kg whole body weight (can be different from country to country). For MRI safety reasons, the MRI machine starts no sequence, if the SAR limit is exceeded.  [10]  

The Civil war Essays -- essays research papers

  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  The Civil War  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   In the United States, the southern states' economies were mainly based on agriculture, but not any normal kind of agriculture, they were based on the agriculture of slave labor. Slavery was deeply ingrained in the culture, so much that only a war could stop it. This war was a gruesome war, made far worse because of the advent of modern rifles, combined with an ignorance of advanced military tactics and lack of medical knowledge. At the time, the method common method of warfare was to line up on a big field and stand up and then shoot. The time that the war occurred was pre-germ theory, methods of antiseptics were unknown. This made it so that great damage would be inflicted upon a person, but there would be no way to properly heal treat it. This combination of factors made this war a particularly bloody and devastating one.   Ã‚  Ã‚  Ã‚  Ã‚  A main factor of this war was that the social entrenchment of slavery ran particularly deep. The institution of slavery had been in place since the first colonies were established in the Americas. Early in American history, when the Constitution of the United States was drafted, slavery was also part of the institution. The southern states wouldn’t have ratified the Cons if slavery were outlawed. The Constitution of the United States was held to be the most holy of documents regarding law. Yet even these â€Å"high principled people† and â€Å"educated and sophisticated hierarchs† that approved and created the constitution left grievous discrepancies that later cause a terribly bloody war. If they had taken a clear stance on anti-slavery, the southern states would never have joined the Union. They discretely mentioned slavery in three different sections, but never out right say that it is legal, or illegal. It gave people the right to sue agai nst slavery. And that put doubt (whether they should be in the union) and fear into southern slaveholder’s hearts. This fear and suspicion was only deepened by the growing abolitionist movement, and gin. The cotton gin was of particular importance because much more cotton could be processed. That meant that more acreage could be planted and harvested. This created a huge increase in the am... ...vernment of Great Britain to have become destructive of these ends, the declared the colonies ‘are absolved from all allegiance to the British crown.† By that argument they are saying that it has all been done before, look, you yourself did it, so don’t be unjust and let us break away like you did.   Ã‚  Ã‚  Ã‚  Ã‚  The citizens South Carolina were feeling that they had been violated and abused by the breaking of a viable contract. The northern states were trying to take away their inalienable rights, and they would stand for it. President Lincoln tried to make it clear that â€Å"I hold that, in contemplation of universal law and of the constitution of the Union of these States is perpetual.† South Carolina and all of the other southern states simply did not listen. Lincoln tried to talk sense into them, counter arguing their every point but they would not take any middle ground, as they felt they had already tried that. When it came down to fighting, Lincoln had the high moral ground, and not only that, the larger, more advanced, and better equipped armies. Lincoln tried to not push the point but he was forced to attempt to keep the union together by any means necessary.

One Flew Over the Cukoos Nest: Every Person is Different :: One Flew Over Cuckoos Nest

One Flew Over the Cukoo's Nest: Every Person is Different In this world there are millions upon millions of people that roam around the earth in there own special, little life. Every person is different than the next one and he or she has their own personality. Each person also deals with life differently than the next. If everyone was the same, then we would be like one giant colony of ants. Just following the ant in front of us, and everyone looking the same as the next. Not having any of there own ideas or thoughts of what to do and how to do it. Some people are what you may call "normal", some are depressed, some are mentally ill, and some are just plain old crazy. In the book One Flew Over the Cuckoo's Nest, written by Ken Kesey, the author shows how people can act so differently and have different ways of dealing with their problems. The story is narrated by Chief Bromden who is thought to be deaf and dumb. He tells of a man by the name of R. P. McMurphy, who was a con man, and was convicted of statutory rape. He told the officials that, "she was 18 and very willing if you know what I mean."( ) He was sent to a work farm, where he would spend some time, working off his crime. Since he was so lazy, he faked being insane and was transferred to a mental ward, somewhere near Portland, Oregon. On his arrival he finds some of the other members of the asylum to be almost "normal" and so he tries to make changes to the ward; even though the changes he is trying to make are all at his own expense. As time goes on he gets some of th e other inmates to realize that they aren't so crazy and this gets under the skin of the head nurse. Nurse Ratched (the head nurse) and McMurphy have battle upon battle against each other to show who is the stronger of the two. He does many things to get the other guys to leave the ward. First he sets up a fishing trip for some of them, then sets up a basketball team, along with many smaller problems and distractions. Finally Nurse Ratched gives him all he can handle and he attacks her.

Galactic Center at Very High Energies Essay -- The Universe, Black Hol

Every time a new ‘‘messenger† (different photon wavelengths or a different particle) has added to the list of observables accessible to astrophysicists, the Universe has appeared under a new light: it has revealed surprising features and triggered new questions, ultimately changing our understanding of fundamental physics and cosmology.Examples include the new elementary particles discovered in cosmic rays in the ‘30s and ‘40s, flavor oscillations from the solar and atmospheric neutrinos, or the revolutions brought by radio or X-ray astronomy. The last decade, a new branch of astronomy was born: high energy and very high energy gamma-ray astronomy. Especially, 2OO4 was a very importand year for the gamma-rays astronomy. Firstly it was the year that marked the 30th aniversary of the discovery of the compact radio source Sgr A* (Balick and Brown 1974) which is now strongly believed to be the revelation of a supermassive black hole of a mass of (3 imes 10^{6} M odot ) that seats in the rotanional center of the Galaxy, according to the measurments of star motions near the Galactic Center (GC). Moreover it was the year that the first detection of gamma-rays from a compact region of size (sim 10') around Sgr A* with the INTEGRAL ( extit{International Gamma-Ray Astrophysics Laboratory } ) observatory in the energy rage from 20 to 100 keV (Belanger et al 2004) and with the HESS (High Energy Stereoscopic System) Cerenkov telescope array between 165 and 10 TeV (Aharonian et al 2004) took place. The detection of a high energy radiation source that appears to be pointlike and coincident with the Galactic Nucleus seems to be the reword of 30 years of observations. The GC is now observed also by the Fermi space observatory. When J.Co... ...i.e. within (sim 100 ) Schwarzchild radii of the black hole). This fact must be explained by any model for the TeV gamma-rays and it seems to support the scenario where the gamma-rays are assosiated with electrons accelarated by the pulsar wind nebula. However, protons may be accelarated close to the black hole, but be converted to gamma-rays only after travelling a significant distance away from the accelaration region (e.g. Atoyan n Dermer 2004; Aharonian n Neronov 2005; Ballantyne et al. 2007a). In the scenario presented by Ballantyne et al. (2007a), proton accelaration was assumed to occur at distances only (sim 20-30 ) Scwarzchild radii from the black hole (e.g. Liu et al. 2006). The particles would then diffuse away from the Sgr A* through the magnetized turbulent ISM ? , until possibly colliding with the dense molecular gas in the circumnuclear disk.

Communication Cycle Health and Social Care

P2 Theories of communication -The communication cycle Effective communication involves a two-way process in which each person tries to understand the viewpoint of the other person. † According to Argyle, skilled interpersonal interaction (social skills) involves a cycle in which you have to translate or ‘decode' what other people are communicating and constantly adapt your own. Communication is a cycle because when two people communicate they need to check that their ideas have been understood†.An example of good communication involves the process of checking understanding, using reflective or active listening. Argyle's stages of the communication cycle were an idea occurs, message coded, message sent, message received, message decoded, message understood. Verbal and non-verbal communication is not always straightforward. The communication cycle involves a kind of code that has to be translated. There are 5 stages in the â€Å"communication cycle† which are: 1. Idea occurs: this is the stage when an individual thinks what he is going to say and who to. 2.Message coded: this is the way that an individual puts his thoughts together with the way he is going to communicate, putting the thoughts into language or into some other code such as sign language. 3. Message sent: this is stage is when an individual speaks or sign what they are going to say, in few words is the way the message is sent. 4. Message received: this is where the person you are speaking to has listened to what you said and they have to sense the message by hearing or watching. 5. Message decoded: The receiver has to understand the message that the sender has just sent.This could be misunderstood easily by interpreting words differently or they might make assumptions about your body language as well as words. 6. Message understood: at this stage the message should be understood but it does not always happen at the first time, and if so the cycle needs to start all over agai n. Without just any one of these stages the cycle would not work. An example of a difficult situation is when your service user tells you they are in pain, but can’t describe the pain they are in.This is difficult because you need to understand what the pain is and what the source of the pain is so that you can resolve the pain and provide a diagnosis, so if they can’t describe the pain you are unable to do so. You can be asking simple questions which may help you understand what sort of pain they are suffering, also by feeling where they claim the problem is and you can see from their reaction if it is painful, but not inflicting too much pain upon them. Using the communication cycle effectively will help. M1 How communication cycle may be used to communicate sensitive issues. Ideas occur: the nurse will start thinking on how communicate to the wife and that she is going to be the one to tell her. She will ask herself what could be the best way to communicate and when and where she needs to communicate about the husband’s condition. This promotes effective communication. * Message coded: the nurse has thought about the ideas and has organized her thoughts; she knows exactly what she is going to say. She has to think about the voice tonality she should use in order to prevent the wife thinking the nurse is not bothered about the loss.Body language plays an important role and could show that the nurse cares about the situation. The nurse will start thinking about the language she is going to use and ask herself what the wife already knows about it e. g. the husband is ill. The nurse will take the wife through to a private room where it's only them two; by doing this the wife should know that the nurse is going to tell her something terrible, the seating would be a barrier if the seats are too far away from each other; the nurse should sit close to the wife. * Message sent: the nurse has now told the wife about her husband.She has used the c ommunication cycle to encode the information correctly and therefore, said something like â€Å"I'm afraid that your husband passed away last night in his sleep, we did everything we could to save him, we're sorry,† rather than something like â€Å"Your husband died last night,†. The first of which is a correct way of putting it, and the second way is a much more insensitive way of saying it. * Message received: now the wife has to sense the message the nurse has just sent her by hearing the words or looking at the body language. Message decoded: the wife now needs to decode the message or to interpret it. She has to observe the body language and the way the message is expressed by the nurse. * Message understood: at this stage the patient should have understood the message by the nurse should but this does not always happen at the first time and this can be identified from the wife’s reaction and behavior. If this does not happen the cycle needs to start all ov er again. P2 theories of communication/ M1 how communication cycle may be used to communicate sensitive issues. Tuckman’s cycle In 1965, Bruce Tuckman, an educational psychologist, suggested that most groups go through four stages in group interactionas and described them as Forming, Storming, Norming and Performing. He did this after he had observed many small groups in various environments and concluded that all groups went through certain â€Å"stages† before they became optimally effective. Name of stage | Description of stage and scenario| Forming| The first stage is forming; this is an important stage because the forming of the team takes place.This stage is also called â€Å"ice-breaking† because it is a stage where all the team members get to know each other and become friendly, they are unsure about who everybody is and what their roles are. The individual’s behavior is driven by a desire to be accepted by the others, and avoid controversy or con flict. The psychologist, doctor and surgeon should meet and discuss about the situation, sharing informations concerns and questions. | Storming| The second stage is storming; at this stage the individual start to show their real feelings and their personalities too.This is because they start to relax and be comfortable around others in their group. Also others in the group may start to have conflict were they have different opinions about ideas, and they don't agree on others, relationships between members will be made or broken and some may never recover. In extreme cases the team can become stuck in the Storming phaseThe professionals starts questioning themselves what their role and duties in the group are or what they are responsible for. Each professional hould say what their solution is and how long it will take, followed by the risk that will come with it. This is a stage where patience is fundamental as there will be disagreements and they will avoid listening to each other ; this is the reason why it will take time. | Norming| As the team moves out from the storming phase they enter the third stage which is norming; this is when the group starts working as a team after having had their arguments and they start to trust themselves as they accept the vital contribution of each member of the team.The team members know each other better, they may be socializing together, and they are able to ask each other for help. At this stage they all should bring the ideas together and reach a conclusion on what they are going to do. They start working as a team and must agree with the decisions made, and if they do not agree they should at least follow the team to avoid the time being wasted. They need to take in consideration how dangerous the procedure will be. Performing| This is the last stage. Many groups never reach the performing stage. Everyone knows each other well enough to be able to work together, and trusts each other enough to allow independent activit y. There is a high level of accepting others, listening to others, and helping others. Performance is delivered through people working effectively together. The team has come to a conclusion and their plan will be applied soon. A timeline needs to be made | Communication Cycle Health and Social Care P2 Theories of communication -The communication cycle Effective communication involves a two-way process in which each person tries to understand the viewpoint of the other person. † According to Argyle, skilled interpersonal interaction (social skills) involves a cycle in which you have to translate or ‘decode' what other people are communicating and constantly adapt your own. Communication is a cycle because when two people communicate they need to check that their ideas have been understood†.An example of good communication involves the process of checking understanding, using reflective or active listening. Argyle's stages of the communication cycle were an idea occurs, message coded, message sent, message received, message decoded, message understood. Verbal and non-verbal communication is not always straightforward. The communication cycle involves a kind of code that has to be translated. There are 5 stages in the â€Å"communication cycle† which are: 1. Idea occurs: this is the stage when an individual thinks what he is going to say and who to. 2.Message coded: this is the way that an individual puts his thoughts together with the way he is going to communicate, putting the thoughts into language or into some other code such as sign language. 3. Message sent: this is stage is when an individual speaks or sign what they are going to say, in few words is the way the message is sent. 4. Message received: this is where the person you are speaking to has listened to what you said and they have to sense the message by hearing or watching. 5. Message decoded: The receiver has to understand the message that the sender has just sent.This could be misunderstood easily by interpreting words differently or they might make assumptions about your body language as well as words. 6. Message understood: at this stage the message should be understood but it does not always happen at the first time, and if so the cycle needs to start all over agai n. Without just any one of these stages the cycle would not work. An example of a difficult situation is when your service user tells you they are in pain, but can’t describe the pain they are in.This is difficult because you need to understand what the pain is and what the source of the pain is so that you can resolve the pain and provide a diagnosis, so if they can’t describe the pain you are unable to do so. You can be asking simple questions which may help you understand what sort of pain they are suffering, also by feeling where they claim the problem is and you can see from their reaction if it is painful, but not inflicting too much pain upon them. Using the communication cycle effectively will help. M1 How communication cycle may be used to communicate sensitive issues. Ideas occur: the nurse will start thinking on how communicate to the wife and that she is going to be the one to tell her. She will ask herself what could be the best way to communicate and when and where she needs to communicate about the husband’s condition. This promotes effective communication. * Message coded: the nurse has thought about the ideas and has organized her thoughts; she knows exactly what she is going to say. She has to think about the voice tonality she should use in order to prevent the wife thinking the nurse is not bothered about the loss.Body language plays an important role and could show that the nurse cares about the situation. The nurse will start thinking about the language she is going to use and ask herself what the wife already knows about it e. g. the husband is ill. The nurse will take the wife through to a private room where it's only them two; by doing this the wife should know that the nurse is going to tell her something terrible, the seating would be a barrier if the seats are too far away from each other; the nurse should sit close to the wife. * Message sent: the nurse has now told the wife about her husband.She has used the c ommunication cycle to encode the information correctly and therefore, said something like â€Å"I'm afraid that your husband passed away last night in his sleep, we did everything we could to save him, we're sorry,† rather than something like â€Å"Your husband died last night,†. The first of which is a correct way of putting it, and the second way is a much more insensitive way of saying it. * Message received: now the wife has to sense the message the nurse has just sent her by hearing the words or looking at the body language. Message decoded: the wife now needs to decode the message or to interpret it. She has to observe the body language and the way the message is expressed by the nurse. * Message understood: at this stage the patient should have understood the message by the nurse should but this does not always happen at the first time and this can be identified from the wife’s reaction and behavior. If this does not happen the cycle needs to start all ov er again. P2 theories of communication/ M1 how communication cycle may be used to communicate sensitive issues. Tuckman’s cycle In 1965, Bruce Tuckman, an educational psychologist, suggested that most groups go through four stages in group interactionas and described them as Forming, Storming, Norming and Performing. He did this after he had observed many small groups in various environments and concluded that all groups went through certain â€Å"stages† before they became optimally effective. Name of stage | Description of stage and scenario| Forming| The first stage is forming; this is an important stage because the forming of the team takes place.This stage is also called â€Å"ice-breaking† because it is a stage where all the team members get to know each other and become friendly, they are unsure about who everybody is and what their roles are. The individual’s behavior is driven by a desire to be accepted by the others, and avoid controversy or con flict. The psychologist, doctor and surgeon should meet and discuss about the situation, sharing informations concerns and questions. | Storming| The second stage is storming; at this stage the individual start to show their real feelings and their personalities too.This is because they start to relax and be comfortable around others in their group. Also others in the group may start to have conflict were they have different opinions about ideas, and they don't agree on others, relationships between members will be made or broken and some may never recover. In extreme cases the team can become stuck in the Storming phaseThe professionals starts questioning themselves what their role and duties in the group are or what they are responsible for. Each professional hould say what their solution is and how long it will take, followed by the risk that will come with it. This is a stage where patience is fundamental as there will be disagreements and they will avoid listening to each other ; this is the reason why it will take time. | Norming| As the team moves out from the storming phase they enter the third stage which is norming; this is when the group starts working as a team after having had their arguments and they start to trust themselves as they accept the vital contribution of each member of the team.The team members know each other better, they may be socializing together, and they are able to ask each other for help. At this stage they all should bring the ideas together and reach a conclusion on what they are going to do. They start working as a team and must agree with the decisions made, and if they do not agree they should at least follow the team to avoid the time being wasted. They need to take in consideration how dangerous the procedure will be. Performing| This is the last stage. Many groups never reach the performing stage. Everyone knows each other well enough to be able to work together, and trusts each other enough to allow independent activit y. There is a high level of accepting others, listening to others, and helping others. Performance is delivered through people working effectively together. The team has come to a conclusion and their plan will be applied soon. A timeline needs to be made |