Strategies for Successful Contract Management and Change Implementation

by Herman Bailey | Jun 23, 2023 | Essays | 0 comments

Discuss the various issues and challenges that confront management when planning change, integrating into your discussion any ethical issues and ethical implications raised by the following questions:

1) What are the key considerations that need to be taken into account in the contracting process?

Contractual relationships are primary in both the public and private sector. A contract binds two or more parties to do or not to do certain things. A contract would for instance be that of sale of goods or the supply of certain goods or services. Contacts exist of different types for example leases, partnership agreements, and employment agreements just to name a few (Haultman 1995). The process of creating a contract involves several things such as exchange of information, discussion and negotiations and many others (Radka 2014). For a contract to be said to be in existence, it must fulfill certain requirements. There must be existence of an offer, consideration, acceptance, and intention to create legal relationship. This section shall discuss all the essential requirements of a contact and factors that may invalidate a contract.

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An offer is usually made by one party known as the offeror to the acceptor. The offer made should define the subject matter to contract on and clearly identify the party to whom the offer is made. Once an offer is made it can be accepted or not. Only what is offered is supposed to be accepted. This means therefore, that the conditions that the offer dictates must be accepted without further conditions. In case new conditions or terms are generated then this results to a counter offer which is rejected. Acceptance of the offer automatically brings the contract negotiations to an end. Acceptance is given verbally, in writing or by conduct. If a means of communication is provided by the offeror then the means must be adhered to at the time of acceptance.

Another essential of a valid contract is the intention to create legal relationships. The parties to the contract must intend to enter into a legally binding contract, that the agreement is enforced in law. The parties intend not to be legally bound then they must include a clause in their contract to show the same. Intention to create legal relationships assist either of the parties seek remedy in a court of law incase the other breaches the contract.

Another requirement for a valid contract is consideration or the price in a contract. Every contract must be supported by a valid consideration. One party must therefore do something in return for something of value. Primarily, consideration is usually money exchanged in a contractual agreement. However, consideration can be anything of value such as a promise to do something or not to exercise a particular right. Payment of consideration in a contract need not to be fair but something of value (Radka, 2014).

2) What does it take to ensure effective data gathering?

Data that is valid is essential in data analysis programs. Data gathering or collection assists any firm or company to measure the outcomes of particular programs. There are fives steps involved in data collection that must be adhered to. First is identification of outcomes and developing performance measures. Secondly, is the creation and implementation of a data collection plan. Thirdly, is the analysis of data and the last step is communication of the results through a data collection report.

Interviews are the primary tools for collecting data. They can be conducted either through the telephone or in person. Interviews provide an opportunity to explore the questions more deeply and get effective data. One can ask questions since it is easier to clarify any confusion, the respondents can evaluate on the answers they have given than when a survey is used for data collection. Interviews are however disadvantageous since they are very expensive and take considerably a large amount of time and one would be required to collect data from very few people.

Observation is another way to ensure effective data gathering and collection. This will require well trained people who are observers who will take notice of all the details and record it down. Observation is an effective data collection technique since it generates first hand and unbiased information through the individuals trained to gather the data. For observation to be effective a proper observation development tool must be obtained.

3) What/who are the primary targets of change programs and why is it important that the identification of the primary target be accurate? What could occur if a mistake is made?

In any organization the primary target for change are the members of that organization. Change however can be targeted to a particular group of people. When this is the case communication need to be made to that particular group to ensure the outcomes of the changes are achieved. It is important to identify the primary target to ensure that communication and information about the changes reaches the group (Dent & Goldberg, 1999). Additionally, it is important so as to avoid blame games when mistakes are made. In case a mistake is made, it becomes easy to find the person responsible for the change and hold them accountable (Kotter & Schlesinger, 1979)

4) Why do people resist change and is such resistance justifiable?

Change is an everyday part of any organization. Resistance to change can cripple any business or organization. Major changes are accustomed to very strong resistance. This is because people tend to rush to defend their status quo if they feel that their security is threatened. Change has the likelihood of generating skepticism and resistance proving it difficult to implement improvements. There are several reasons why people resist change. This section shall discuss these reasons and their justification. Change is a process that involves movement from the current way of doing things to a different approach of things. According to (Bridges, 1991), Individual do not resist actual change rather the process of acquiring that change. Sometimes change requires psychological change for people to view change positively. The transition must work for change to work. To understand change, it is important to ensure that the transition process is smooth for all people. Morgan (1997) suggests that change will spontaneously occur only if people are prepared to relinquish their state of comfort.

The first and common reason why people resist change for example in the workplace is fear of loss of employment. In most organizational settings technological advancements or product changes can create fear among employees. These changes create the dissatisfaction that their employment status is insecure and that their primary reaction to change is resistance. It s common to find employees who have job security accept and implement change. When the change is harmful to the job then the resistance is more likely to be high. Unhappy employees view change as something annoying and no matter the effect of the change then they will view it as having a negative impact to their positions (Folger & Skarlicki, 1995).

People may also resist change due to bad communication strategies. The mode of communication to people is critical in determining their reaction to change. If the communication is going to define who, why, how, when and what then the chances of resistance is inevitable. People are supposed to understand the need for particular change. In addition, if the change is not communicated at all then the first reaction to it is resistance since the people are likely to feel that the change is being forced on them. Immediate information should be provided during the process of change to maintain an open communication door policy (Strebel, 1996). The management or person responsible for change must ensure that they are available to answer questions.

Fear of the unknown is another reason for resistance of change. People reaction to changes ranges from fear, panic to enthusiastic support. During the change process people may feel the need to cling to the past because it was more secured and predictable (Strebel, 1996). It is usually because the change worked for the people and fear that the changes being implemented will not be achievable. It is said that the more the people are less aware of change then the higher the likelihood of resistance. People need to be prepared for change and a two-way communication must be maintained with the leadership (Kegan & Lahey 2001).

5) What strategies can be used to manage resistance to change?

Change is inevitable and proper strategies can be used to properly mange the resistance that comes with change. The first strategy is communication; a two-way communication must be maintained to ensure that that the reaction of the people is listened to. The communication must me timely, and straightforward. Various channels of communication such as email, meetings and suggestion boxes must be used to achieve this.

Resistance to change can be achieved by ensuring that the people are given a chance to participate in the change. The input of the people is very important to determine what is expected and what the employee’s role is in the change process. The people can be divided into teams and will implement the change as a group (Piderit, 2000). All in all to manage resistance the leadership for change should focus on providing solutions other than providing punitive measures to people who resist change. Engage in positive solutions other than being defensive. Listening is one way of achieving this, through listening questions is answered any doubts and fears are also solved (de Jager 2001).

6) Given organizational politics is an ongoing challenge in the context of change, how may one develop political support for a change process?

Organizations are required to explore political factors to ensure that organizational change is not interfered with. This section shall outline the strategies to use to deal with organizational politics. In the work place, for instance, political resistance is likely to emanate from Union representative of employees (Coetsee, 1999). To overcome this challenge therefore, it is important to communicate with the Union in charge of the changes that are likely to take place in the work place. Communication can be in form of letters addressed to the Union itself. The Union in return will have the responsibility of communication the changes to its members and convincing them to take it positively (Kirkman, 2000).

References

Bridges, W. (1991). Managing transitions: making the most of change. Reading, MA: Wesley Publishing Company.pg 14

Coetsee, L. (Summer, 1999). From resistance to commitment. Public Administration Quarterly, 204-222. http://www.i-scholar.in/index.php/IJKCCMCG/article/view/57526

de Jager, P. (2001). Resistance to change: a new view of an old problem. The Futurist, 24-27.

Dent, E. & Goldberg, S. (1999). Challenging “resistance to change.” Journal of Applied Behavioral Science 25-41.

Folger, R. & Skarlicki, D. (1999). Unfairness and resistance to change: hardship as mistreatment, Journal of Organizational Change Management, 35-50.

Hultman, K. (1995). Scaling the wall of resistance. Training & Development, 15-22.

Kegan, R. & Lahey, L. (200 1). The real reason people won’t change. Harvard Business Review 85-92.

Kirkman, B. (2000). Why do employees resist teams? examing the “resistance barrier” to work team effectiveness. International Journal of Conflict Management 74-93.

Kotter, J. P., & Schlesinger, L.A. (1979). Choosing strategies for change. Harvard Business Review 106-114.

Morgan, G. (1997). Images of organization Thousand Oaks, CA: Sage Publications, Inc. https://uk.sagepub.com/en-gb/afr/images-of-organization/book229704

Piderit, S.K. (2000). Rethinking resistance and recognizing ambivalence: a multidimensional view of attitudes toward an organizational change. Academy of Management -794. A, 783

Strebel, P. (1996). Why do employees resist change? Harvard Business Review 86-92. https://hbr.org/1996/05/why-do-employees-resist-change

Radka, S. (2014). Key Considerations for Contract Management. Implementation.Percificient.com. https://blogs.perficient.com/ibm/2014/09/16/key-considerations-for-contract-management-implementation/

Herman Bailey

With a student-centered approach, I create engaging and informative blog posts that tackle relevant topics for students. My content aims to equip students with the knowledge and tools they need to succeed academically and beyond.

Post-Hip Replacement Discharge Plan: Ensuring a Smooth Transition and Optimal Recovery

by Herman Bailey | Jun 23, 2023 | Essays | 0 comments

1. In relation to your chosen patient, discuss the pathophysiology of their condition and using evidence based practice explore current treatment options for your patient’s condition, include any pharmacological and non-pharmacological considerations.

Osteoarthritis is a joint disease that causes chronic disability in adults of over 70 years of age. It is a degenerative condition resulting from the biochemical breakdown of articular or hyaline cartilage found in synovial joints. It also involves the whole joint organ as well as a sub-chondral bone as well as synovium (Tibor and Ganz, 2015).

Jones osteoarthritis is seen as a consequence of aging, he is 83 years of age. Many differences between the aging cartilage as well as the osteoarthritis have been defined, indicating the former. For instance, though denatured type II collagen is found in osteoarthritis cartilage and normal aging, it is exceedingly predominant in osteoarthritis. Osteoarthritis together with the normal aging cartilage vary in the volume of water content as well as the proportion of chondroitin-sulfate to keratin sulfate components (Jämsen et al. 2015). The manifestation of a chondroitin-sulfate epitope, epitope 846 in osteoarthritis cartilage, is only present in neonatal and fetal cartilage that proves that osteoarthritis cartilage is a different pathologic process. Another important decision is that the derivative enzyme activity increases in osteoarthritis as opposed to normal aging cartilage resulting in Arthur Jones’s total hip replacement (Nepple et al. 2015).

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Researchers have identified failures as a result of infection, of the bone to grow to porous metal or hip breakages linked to smoking. When considering only smoking-related catastrophes, the catastrophes rate was 9% in smokers and 3.6% in nonsmokers. Nicotine constricts blood vessels resulting to the wounds getting lesser oxygen and healing nutrients, which slows the healing process, as Adolph V. Lombardi, MD, confirms smoking results to less oxygen in the wound compared to nonsmokers (Lane et al. 2015). Carbon monoxide affects blood cells, hence decreasing oxygen distribution to tissues. The tissues are now prone to death. Smoking also causes blood platelets to stick, causing a blood clot (Daivajna & Villar, 2015). Elderly men who have low serum intensities of vitamin D are at greater risk of getting hip osteoarthritis.

Hypertension is also linked to Hip replacement. Most the time the disease is usually linked to cardiovascular disease that lead to coronary heart diseases and renal diseases. In addition, hypertension has been said to be the third leading cause of disability. The risk of hypertension increase with age. Jones therefore, has a high risk of hypertension being the fact that he is 83 years of age. There is therefore the need for preoperative evaluation and optimization of the patient (Kordic et al., 2012).

Another pathophysiology of Jones condition is vitamin D deficiency. Deficiency in vitamin D has been reported previously in patients with osteoarthritis undergoing hip replacement surgery. There is also high vitamin D prevalence in elderly patients with advances osteoarthritis. Vitamin D deficiency has been associated with preoperative functional state. Vitamin D is important for the regulation of calcium metabolism. According to (Jansen, 2013), there is a relationship between Vitamin D and the progression of knee osteoarthritis and that lower intakes of vitamin D increases the condition.

For hip osteoarthritis, stress management is encouraged to hasten post surgery healing. According to OARSI, hip treatment should first focus on patient-driven and self-help modalities as opposed to patterns given by health professionals. The ACR recommendations for the hip osteoarthritis include aquatic exercise, weight loss mainly for overweight patients and cardiovascular as well as land-based resistance training. Other measures include walking aids as required, thermal agents, programs regarding self-management, psychological interventions and manual therapy coupled with supervised practice (Daivajna & Villar, 2015). Pain management should be done through use of prescribed prescription of pain killers. The wound should be checked on a daily basis by the wound nurse.

2. Critically discuss four (4) components of the PACU discharge criteria outlined in the Aldrete Scale. Utilize the scale provided on LEO as a resource in your case study.

First, the processes ensure that there is a safe as well as an appropriate patients’ discharge to their home. This is done by the written policies and procedures of the facility which are put in place to discharge appropriately their patients to their homes and with an active collaboration of anesthetics, surgeons and qualified peri-operative nurses to ensure guidelines and safe practice has been accomplished and followed. Therefore, is very crucial for the nurse to observe intensively patient recovery to detect any sort of possibly complication from the surgical episode (Phillips et al. 2013).
Jones has to be also met with some outcomes such as obstructive sleep apnea, pain, difficult intubation, and vomiting. The discharge order is written by the most accountable physician who can be a surgeon or anesthesiologist. PACU as well may be delegated the decision to remove base on an objective discharge scoring system to the RN (Wainright & Middleton, 2015).

Secondly, an RN has to observe patient for respiratory depression at least for 20 or 30 minutes after taken the last dose of parental narcotic to make sure that patient can breathe without any difficulties. The respiratory exercises are conducted to prevent occurrence of infections such as pneumonia, and prevent imperative blood clots and keeping the lungs clear. Another importance of the respiratory tests is that it helps keep the pain under control. Some of the respiratory exercise performed include, taking deep breathes, coughing and incentive spirometry which are done every two hours (Daivajna & Villar, 2015).

Thirdly, Jones has to be fully orientated and aware of person, a place and time. It will indicate if patient has the readiness to be discharge or has some impact of its cognitive recovery. Before discharge the patient is informed that they will be in charge of their medication and respiratory exercises. They should be able to take care of themselves.

Lastly, stability of vital signs and stable capillary oxygen saturation are monitored after the first 24 hours. The RN is required to monitor the incision and dressing for any amount of drainage and any signs of infections. If a change of dressing is needed it should be done using the sterile technique. In addition, respiratory exercises are performed every two hours. Consequently, the bowel sounds are monitored and the diet of the patient is increased gradually according to the RN orders. Evidence of any potential complications is quickly corrected by the surgeon.

Furthermore, a responsible adult accompanies patient from the hospital. In the events where the patient is not willing for accompaniment from the hospital by a responsible adult, extra measures are taken. Some of the additional steps include and are not limited to patient’s being advised on the significance of an adult companion. Determination of the patient’s physical and cognitive parameters exceeding minimum requirements for discharge and that he or she can operate independently by the responsible physician. He also ascertains the mode of transportation the patient reports if it is allowable. He further can write a discharge order including the patient’s discharge without a responsible adult. This decision is not delegated to PACU RN. Further, arrangement is organized for patients who do not meet physical and cognitive parameters regarding discharge to undergo care (Weingarten & Middleton, 2015).

3. Develop a discharge plan to support your patient on discharge. Include any education you deem relevant, any referrals to allied health professional/s required, and discuss your rationale.

The goal of a discharge plan is to prepare the patient for discharge within a short time. It results in better comfort in the patient; reducing hospital acquired infections as well as costs. The patient can be discharged home after meeting the discharge criteria. Hip replacement discharge for Jones will include what is expected at his home, the home set up, and the activities involved, wound care and self-care, and when the doctor is required (Nakamura et al. 2015).

Education of patients suffering osteoarthritis of the hip can reduce their pain and improving the quality of life. Jones should be educated during the discussion with the doctor, through user groups or being delivered with written material (Stambough et al. 2015). He should frequently peruse materials from the Internet; join the Osteoarthritis Self-Management Program (OSMP), which is a peer-led and community-oriented program where patients are educated as on skills for self-management of osteoarthritis. The Osteoarthritis Foundation of Australia is one such example that organizes the administration of these courses. The courses are led by trained volunteers. A randomized attempt have revealed that members have lessened joint pains, fewer osteoarthritis-related consultations with the doctors, improved physical activity as well as enhanced quality of life. A methodical assessment of published attempts of the entire types of education packages regarding self-management of osteoarthritis certifies clinically minor, but significant decreases in pain coupled with a disability (Nakamura et al. 2015).

If Jones experiences continuous pain, and advanced limitation of activities of the day despite medical management. He can be referred to an orthopaedic surgeon to be assessed. To be an appropriate candidate for surgery, Jones needs to be medically suitable and able to take part in rehabilitation programs post-operatively. Complete joint arthroplasty releases pain as well as improve function for at least ten years. Full joint arthroplasties are deteriorating with time, hence need revision (Nakamura et al. 2015).

Referral to the Occupational therapist is necessary for the safety assessment of his house. The bed should be as low as possible to allow his feet touch the ground while sitting on the edge. His mattress has to be firm since he will not need a hospital bed. Uneven flooring found in doorways should be fixed, and good lighting installed (Stambough et al. 2015). The bathroom should be made safe by installing handrails as well as the commode. Putting things where they are reachable such as chairs placed firmly back in the Kitchen, bedroom and other rooms he is likely to use and no stairs in the house (Wylde et al. 2015).

This part involves keeping the bandage on the wound clean as well as dry. He is supposed to change the dressing in accordance with the physician’s directions when it is dirty or wet (Wainwright et al. 2015). The wound nurse is supposed to prescribe for the pain medicines. He should ensure his prescription is filled when he gets home and have it when need be. He is expected to take pain medicine when he begins feeling pain. He should not wait too long to take his medicine as that will result in severe pain. In the initial stages of recovery, taking pain medicine 30 minutes before he increases his activity helps reduce pain. He may be requested to put on special compression stockings for approximately six weeks. The importance of this is to prevent the formation of a blood clot (Stambough et al. 2015).

Referral to a nutritionist is necessary to ensure that Jones adheres to a certain diet to ensure proper healing. His diet should include foods full of calcium and vitamins to hasten the healing process. In addition there is need for referral to a wound nurse who would clean and dress Jones wounds daily. Since Jones has no relative thee is need to refer him to a personal care giver who will assist him in the bathroom, cooking and shopping to avoid injuries. Jones appears to be stressed by the surgery and would therefore need a councilor who will help him in the healing process (Lane et al. 2015).
Jones should be referred to a general Practitioner who will follow up on his recovery. He is supposed to call the doctor in case of blood in his stool or when it turns dark. A swelling in one of the legs could also prompt him to call the specialist. Performing respiratory exercises help in preventing breathing complications. These include deep breathing as well as coughing and encouraged spirometer exercises. The processes speed up recovery as it lowers the risk of lung problems for example pneumonia (Daivajna & Villar, 2015).

References

Daivajna, S., Bajwa, A., & Villar, R. (2015). Outcome of Arthroscopy in Patients with Advanced Osteoarthritis of the Hip. PloS one, 10(1).
Jämsen, E., Nevalainen, P. I., Eskelinen, A., Kalliovalkama, J., & Moilanen, T. (2015). Risk factors for perioperative hyperglycemia in primary hip and knee replacements: A prospective observational study of 191 patients with osteoarthritis. Acta orthopaedica, 86(2), 175-182.
Jämsen, E., Peltola, M., Puolakka, T., Eskelinen, A., & Lehto, M. U. K. (2015). Surgical outcomes of hip and knee arthroplasties for primary osteoarthritis in patients with Alzheimer’s disease a nationwide registry-based case-controlled study. Bone & Joint Journal, 97(5), 654-661. http://www.bjj.boneandjoint.org.uk/content/97-B/5/654
Jansen, H. (2013). High prevalence of vitamin D deficiency in elderly patients with advanced osteoarthritis scheduled for total knee replacement associated with poorer preoperative functional state. University College London Hospitals NHS Foundation Trust, UK
Kordic, K., Sakic, K., & Oberhorfer, D. (2012). Analysis of blood pressure changes in patients
Undergoing total hip or knee replacement in spinal and general anesthesia. University Department of Anesthesiology, Resuscitation and Intensive Care, Sveti Duh University Hospital, Zagreb, CroatiaActa Clin Croat 2012; 51:17-23
Lane, N. E., Hochberg, M. C., Nevitt, M. C., Simon, L. S., Nelson, A. E., Doherty, M., … & Flechsenhar, K. (2015). OARSI Clinical Trials Recommendations: Design and conduct of clinical trials for hip osteoarthritis. Osteoarthritis and Cartilage, 23(5), 761-771.
Moscato, V. P., O’Brien-Irr, M. S., Dryjski, M. L., Dosluoglu, H. H., Cherr, G. S., & Harris, L. M. (2015). Potential clinical feasibility and financial impact of same-day discharge in patients undergoing endovascular aortic repair for elective infrarenal aortic aneurysm. Journal of vascular surgery. http://www.ncbi.nlm.nih.gov/pubmed/26070606
Nakamura, Y., Kamimura, M., Uchiyama, S., Komatsu, M., Ikegami, S., & Kato, H. (2015). Osteoarthritis in the forefoot accompanied with joint pain is potentially associated with bone alterations. International Journal of Diagnostic Imaging, 2(2), p64. http://www.sciedupress.com/journal/index.php/ijdi
Nepple, J. J., Thomason, K. M., An, T. W., Harris-Hayes, M., & Clohisy, J. C. (2015). What is the utility of biomarkers for assessing the pathophysiology of hip osteoarthritis? A systematic review. Clinical Orthopaedics and Related Research®, 473(5), 1683-1701.
Phillips, N. M., Street, M., Bridie, K., Haesler, E., & Cadeddu, M. (2013). Post-anaesthetic discharge scoring criteria: key finding from a systematic review. International Journal of Evidence-Based Healthcare (Wiley-Blackwell). 11(4), doi: http://dx.doi.org.ezproxy2.acu.edu.au/10.1111/1744-1609.12044
Stacey, D., Taljaard, M., Dervin, G., Tugwell, P., O’Connor, A. M., Pomey, M. P., … & Hawker, G. (2015). Impact of patient decision aids on appropriate and timely access to hip or knee arthroplasty for osteoarthritis: A randomized controlled trial. Osteoarthritis and Cartilage.
Stambough, J. B., Pashos, G., Bohnenkamp, F. C., Maloney, W. J., Martell, J. M., & Clohisy, J. C. (2015). Long-Term Results of Total Hip Arthroplasty with 28 millimeter Cobalt-Chromium Femoral Heads on Highly Cross-linked Polyethylene in Patients 50 years and Less. The Journal of Arthroplasty. http://www.ncbi.nlm.nih.gov/pubmed/26260785
Street, M., Phillips, N. M., Kent, B., Colgan, S., & Mohebbi, M. (2015). Minimising post-operative risk using a Post-Anaesthetic Care Tool (PACT): protocol for a prospective observational study and cost-effectiveness analysis. BMJ open, 5(6), e007200.
Tibor, L. M., & Ganz, R. (2015). Hip Osteoarthritis: Definition and Etiology Osteoarthritis Hip OA See Osteoarthritis. In Hip Arthroscopy and Hip Joint Preservation Surgery (pp. 177-188). Springer New York.
Wainwright, T. W., Immins, T., & Middleton, R. G. (2015). Hip osteoarthritis: patients with complex comorbidities can make exceptional improvements following intensive exercise and education. BMJ case reports, 2015, bcr2014208529.
Weingarten, T. N., Bergan, T. S., Narr, B. J., Schroeder, D. R., & Sprung, J. (2015). Effects of changes in intraoperative management on recovery from anesthesia: a review of practice improvement initiative. BMC anesthesiology, 15(1), 54.
Wylde, V., Lenguerrand, E., Gooberman-Hill, R., Beswick, A. D., Marques, E., Noble, S., … & Blom, A. W. (2015). Effect of local anaesthetic infiltration on chronic postsurgical pain after total hip and knee replacement: the APEX randomised controlled trials. Pain, 156(6), 1161-1170.

Herman Bailey

With a student-centered approach, I create engaging and informative blog posts that tackle relevant topics for students. My content aims to equip students with the knowledge and tools they need to succeed academically and beyond.

The Role of Photoplay in Revealing the Inner World of the Human Mind

by Herman Bailey | Jun 23, 2023 | Essays | 0 comments

Photoplay- The Philosophy of Film

… “The photoplay tells us the human story by overcoming the forms of the outer world, namely space-time and causality and by adjusting the events to the forms of the inner world, namely attention, memory, imagination, and emotion.” …. (Defining the Photoplay, p. 44)

The quote is from Munsterberg Hugo’s work on Film Formalism. The quote alludes that through a photoplay the human mind can perform several activities as it interacts with the photoplay. Through observation of a photoplay, it displays the inner activity of the human mind. The photoplay means pictures that are in motion. When the real-time pictures are moving, the audience’s mind feels that the pictures are not a representation of the world and the mind categorizes them as plastic things. When the photoplay is in continuous movement, the mind does not see the objective reality but pictures that the mind has put together. However, when we are attentive we notice a difference. The difference can only be noticed with imaginations, emotions, and suggestions of the mind. The mind then turns its attention to the important details ignoring everything else. This is achievable if the pictures are enlarged. The mind starts to imagine and bring back pictures from the past inserting them into the current photoplay. The mind starts dreaming through the division of interest. Through the photoplay, the human mind has the likelihood of bringing past emotions and events that took place in different places together. The woven scenes can then dictate emotions and feelings.

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The nosferatu is an ancient film produced in 1921. I will discuss this image http://www.hardcoregaming101.net/nosferatu/nosferatu1922-02.jpg. The image is a vampire attacking a man who takes cover on some metal grills. The man is very scared, to even look at the shadow of the vampire attacking him. Looking at the man, there is fear written all over his face. The shadow of the vampire to him means that death is coming his way. As discussed by Munsterberg the photoplay tells the human story through imagination and emotion. The man in the image has seen people being attacked by vampires and he is imagining that happening to him. All the images of the previous victims come to his mind and generate the emotion of fear.

.. “But the instant the criterion of authenticity ceases to apply to artistic production; the total function of art is reversed. Instead of being based on ritual, it begins to be based on another practice – politics”…

Walter Benjamin was referring to the Aboriginal art contributing to a long debate about the authenticity of the art in the mechanical production period. Aboriginal art has from time memorial considered not to be art for the basic reason that most of the art pieces are for commercial reasons. The arts are usually not authentic because they are a fabrication of the original pieces of art. This fate of Aboriginal art can be corrected so that the art serves the purpose for which they were created. He says producing artwork for commercial reasons leads to loss of aura of the art. When the artwork is reproduced it loses its purpose with several replicas the art loses its authoritative nature.

The Rome Open City is an ancient film whose video was produced by Roberto Rosselin in 1945. The film is based on the Nazi occupation of Rome City and the few people who were in the resistance in World War II. The image link is http://www.criterion.com/films/975-rome-open-city. The picture shows a woman who is probably escaping being seized by guards. During World War II the Nazis were occupying the city. The resistant army consisted of mostly women. Those who were caught were arrested and punished.

.. “And for the first time, an image of the world is formed automatically. (Cinematic Realism.”….

Photography has undergone numerous changes over the years. In the 21st century, several photo editing applications can be accessed just a click away. It was during the 19th Century that digital photography practices were invented. Photography is not distinguishable from painting. The lens is now the reflection of the world; capturing real-time images is now the norm, which is later put into paintings. The images are created automatically without the invention of man. Photography is, therefore, presented to the world in its truthful and objective manner. Photography is satisfaction for realism in the 19th century.

The film Breathless has adopted its own kind of photography. The link to the image I shall discuss is http://thecinemaniacs15.com/2012/11/07/a-breath-of-fresh-air-godards-breathless/ Jean Godard first shot the film introducing a new era of photography for films. His production was envisioned with creativity and personal expression that no other filmmaker had attempted. This shot particularly is very clear, in the background there are cars. The shot is a very clear version of the black-white shots that existed in those ancient days. The content of the film style reflects existing objects and anarchy. The film is best known for its radical editing techniques through the editing of a different scene. It is through this production that the current digital photography of the film was developed.

Herman Bailey

With a student-centered approach, I create engaging and informative blog posts that tackle relevant topics for students. My content aims to equip students with the knowledge and tools they need to succeed academically and beyond.

Intellectual Property Licensing: Expert Answers and Insights

by Herman Bailey | Jun 23, 2023 | Essays | 0 comments

Q1:
(A) – identify and discuss key terms in TM license.

The licence grant

This is at the core of a trademark licence agreement because it offers definition to the answers of the following key questions.

1. The licence grant defines the specific rights that are conveyed and the trade marks that are being licenced.
2. Licence grant defines what the licensee is allowed to exercise with the licenced right. Similarly, it also defines what the licensee is prohibited from doing with the licenced rights. Particularly, the types of products the licensee is allowed to sell or manufacture, which channels of distribution and which territories.
3. Finally, licence grant defines whether the grant is non-exclusive or exclusive. Moreover, the owner of trade mark may also licence the copyrights (for brand related contents that are original, logos), and publicity rights (for the celebrity licences) (Herzfeld & Bergovoy 34).

Distribution channels and territories

Territory implies the geographic area whereby the licence is allowed to the goods licenced, and usually defined on a basis of a country.

Distribution channels means the categories of buyers permissible from the licensee and the resellers of the licenced products to the general public. The most common channels of distribution include catalogues, the web and internet and stores such as speciality, mid-tier and mass department stores.

According to Herzfeld & Bergovoy, the conflict arises when negotiating the provision of channels where the licensor desire to only have the best quality and newest goods for sale in the channels that are regarded as most prestigious to boost the brand image, whereas the desire of the licensee to make the most profits by using many channels as possible to sell multiple products at whatever market price (35). In negotiating the provision of distribution channel, Herzfeld & Bergovoy indicated that licensors usually want well defined, limited channels and no right to sell-offs (inventory unsold at the agreement expiration), close outs (unsold inventory out of season), or seconds (goods having merchantable but minor defects) to discount channels without proper approval (para 8). In contrast, licensees generally desire to sell through all channels possible and also want to rights to selling sell-offs, close outs, or seconds to discount channels without proper prior licensors approval.

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Exclusivity

This is to what extent if whether the licence will possess exclusive rights. The licences that are non-exclusive do not restrict the ability of the licensor to grant licences for similar or like products to other groups or parties. As the name implies, exclusive rights grant exclusive rights to the licensees to produce and sell the licenced products in certain markets and territories during the term period of the licence (Herzfeld & Bergovoy 34).

The licence term

The initial term’s length and the ease or difficulty or difficulty of the licensee in getting a renewal term is driven largely by consideration of businesses. Generally the licensor wants a short term without the option of automatic renewal for it to replace easily the licensee who is underperforming, or get better financial terms from new licensee or even by manufacturing the goods by itself. In contrast, the licensee wants a longer term compounded with an option for automatic renewal with no of few preconditions for it to amortize the costs of development, and guarantee longer returns for the investments it made (Herzfeld & Bergovoy 35).

Royalty calculations

The trade mark licences currency are the royalties. The basis most common for calculation of royalties on licence for goods is on a percentage of wholesale net sales, defined as the gross sales subtract the agreed deductions such as returns and taxes. The figure of net sales realised is then multiplied by the rate of royalty to get the royalties sum owing to the licensor (Herzfeld & Bergovoy 35). Herzfeld & Bergovoy further pointed out the most common contention points when negotiating the provision for net sales. They include:

1. The acceptable deductions from the gross sales when calculating accrued net sales and another limits found within.
2. Whether the figure of net sales will be based on the licensees’ sales regardless of no pays, or based on the actual receipts from the licensee, exclusive of the purchasers who failed to make payments for whatever reasons. Herzfeld & Bergovoy asserted that generally the receipts are in favor of the licensee whereas the sales generally are favorable to the licensor (35).
3. Free on Board (FOB) sales treatment. FOB is a legal term specifying that the buyer of items from the international commerce will have the legal responsibility of arranging and paying for shipment of the goods purchased from the point the goods pas the rail of the ship at the home port of the seller. However, FOB is used in license agreement more broadly to any scenario where the other buyer or retailer takes the delivery of the location of the licensee and ships the products licensed to the expense of the buyer, essentially removing insurance, freight, related shipping expenses and customs from the net sales price of the licensee. This definitely results to lower royalties on the part of licensor, in comparison to the non-FOB sale of similar goods (Herzfeld & Bergovoy 36).

Minimum guaranteed royalties

This represents a contractual commitment to pay the licensor an agreed amount of royalties by the licensee regardless of the exact sales amount of the products licensed, if any. Herzfeld & Bergovoy stated that advance payments also form part of minimum guaranteed royalties that is paid at the commencement of the license agreement (36). The minimum guaranteed royalties are usually negotiated based on a certain percentage of royalties expected to be earned. Their intention is to motivate the licensee to promote the sale and development of the products licensed diligently in the marketplace, and reduce the risk of the licensor by guaranteeing a minimum rate of return.

Quality control and approvals

According to Herzfeld & Bergovoy, trademarks operates as designators that give the consumers predictive ability to predict products quality they buy (36). Without the consistency in quality, the buyers not aided would be misled, by relying on trademarks. The licensor of a trademark that does not control and monitor its licensed products is regarded as to have granted a naked license which may lead to complete loss or abandonment of the trademark rights of the licensor. To avoid that, every trade mark license agreement must have provisions for quality control that applies to the products licensed and also related packaging, marketing and advertising materials. Furthermore, the approval provision should have mechanisms workable by which the licensor can monitor the compliance of the licensee (para 10).

(B)- Infringement quality control (bare license UK, naked license US)

Trademarks are any symbols, words, phrases, design or a combination of any that is used to distinguish products and services of one person or organization from another (Shemtov 3). The key term for any of the marks to term as trademarks is that they have to be distinguishable. Trademarks preserve not only the reputation of a product or service but also that of a producer. Trademarks are required to be registered for one to acquire exclusive rights to the symbols, designs, or a combination of these to distinguish services or products. A trademark right is not granted anyhow, one has to go through some tests before registration (Oxbridge 1). For a trademark to be registered it must fulfill a certain criteria. The mark must be used to distinguish products or services from those of others. The marks must also not be similar to any mark that has already been registered or is pending registration. The name of the mark must also not be similar to any registered name.

However, trademarks rights need not be necessarily registered since the right itself are acquired using the trademark, which designates the source of origin of the goods or services. Organizations or persons who own unregistered trademarks can prevent a third party from using their trademark if they can establish that the third party is passing off services or goods as those of the trademark owner. The trademark license has several key terms such identification of owners or parties, recitals, the license grant, compensation and obligations of parties (Dolan 2).

The license should identify the parties to the agreement and the owners of the trademark. The agreement should therefore be between the party who has the right to grant the license and the party that will exercise the license. The addresses and contacts information of each party can be included. The legal names of each party should be used in the license since its provisions will bind only party to the contract (Bloomberg Law 1).

The second term is the recital, which gives information about the parties and their relationship up to the contracting time. Recitals are helpful in explaining to the audience the context of the license. It should therefore, be consistent with the provision of the main agreement (NOLO 1). The third term is the license grant, which is the most important part of the license it usually sets out the scope and rights granted in the license together with the limitations of those rights. The fourth term is the obligations of the parties’ clause (Shemtov 1). As the name suggest this term explains the obligation of each party to the license in detail. Definition is another term of a license; it is usually referred to as the dictionary of the agreement. It explains the main terms used in the agreement giving their meanings in detail. Definition is essential for the simplification of drafting (Oxbridge 5). In addition, it can be used to limit the scope of the license setting out rights and obligations of the parties.

(C)- Discuss pros and cons of exclusive and non-exclusive licensing

In exclusive licensing, the licensor agrees not to grant other licenses with similar rights within the scope of the field covered by the exclusive license. The main advantage of exclusive licensing is that it limits competition (Schmitz 112). Another is that the owner of the license exercises creative control over it. There is also the retaining of greater returns for royalties. The main disadvantage is that it is difficult to control this type of licensing. On the other hand, non-exclusive licensing is where the owner of a trademark reserves the right to grant license of the technology or mark to third parties and for his personal use (Werra 27). The main advantage is that the owner can enjoy the right to use the mark or technology. The second is that the owner can still license the mark and continue receiving royalties for the same. The main advantage is that the owner has limited possibility of controlling the mark especially after licensing.

Naked licensing occurs when the licensor does not exercise enough quality control over a trademark licensee use of the licensed trademark (Dolan 1). When a trademark is naked, there is a very high likelihood of the court declaring it as trademark abandoned and therefore not enforceable. To avoid this, companies and organization need to make sure they have a well-written agreement with quality control provisions. The provisions should place control of the mark in the hands of the licensor and permit him or her to monitor quality through inspections and agreed supervisory channels. The licensor should be allowed to terminate the licensee if it fails to meet the quality standards or if the licensee or obstructs quality control inspections (Bloomberg Law 1).

Bare license in property law means that another person has acquired permission to enter another person’s property for his or her benefit. Therefore, in trademarks and intellectual property law a bare license is said to be in existence if a person uses the property of another with express or implied permission from the owner. It is the license to use copyrighted material without conferring exclusive right (NOLO 1).

Question 2

2 (a) the question has been answered in question 1 (a)

Question 2 (a)

Issue

This case of Ben Vs. Agbio Plc was over a sublicencing dispute where the claimant was Ben and the defendant was Agbio Plc.Ben Ransome registered ‘Brensome’ as a Community trademark (CTM) for agricultural products in Class 31 of the Nice Agreement. This made Ben a licensee in the case study. In January 2009 Ben and Agbio entered into a licensing agreement providing that Agbio could use the CTM ‘Bensome’ registered to Ben, 5 years as a distinctive mark for the genetically modified potato. This implies that Ben sub-licensed his trade mark license to Agbio. The agreement did not give Ben an express contractual right to inspect or supervise Agbio’s operations. This implies that the sublicense agreement between Ben and Agbio was a naked license.

Rule

A sub-licence is a contract or licence granted to a third for a specified uses or rights of a product, logo, name, and brand among others. A trademark licensor according to Perlman, has a duty of controlling the goods and services quality offered by a licensee under the trademark (83). A trade mark license is considered “naked licence” if it does not have any provisions for quality control of if there is no exercise of quality control. According to Shemtov, a naked licencing may lead to many possible effects: a break in the continuous use, abandonment of the trademarks rights, finding the licence as void or stopping of the licensor from challenging the uncontrolled use by the licensee (45).

Application/Analysis

In the case scenario, the licensor is the registrar, the licensee is Ben and the sun-licensee is Agbio. The registrar as the licensor should perform quality control of the goods and services of licensee, which in this scenario is Ben. Schmitz asserted that under the agreement, the licensee cannot their responsibilities without the licensors consent (44). Therefore, in this case, the licensor was responsible for quality checks of the goods and services offered by both Ben and Agbio. It is stated that Ben did not do quality checks for Agbio’’s products and services because the contract stated that way, and also because Ben was not the licensor. However, it is not stated whether the Licensor performed the quality control of the products of Agbio.

Conclusion

From the legal arguments and tussle between Ben and Agbio, the following are the possible outcome of Ben’s legal action:

1. The naked or uncontrolled licencing may result in cease of function of a trademark as a symbol of controlled source and quality source. Furthermore, where the licensor fails to perform quality control adequately over the licence, the court may find that the owner of the trademark has abandoned his or her trademark, which in this case, the court would stop the owner from asserting rights over the trademark. It is of great importance to note that the owner of a trademark may lose its rights just through its inactions or action and the owners’ intention is not relevant directly (Oxbridge 1). Therefore, in this scenario, if the licensor or Ben did not exercise quality control over the products Agbio commercialised, then Ben would be estopped from asserting rights over the trademark
2. While is it is very important to have the formal agreement contained in a licence agreement about control of quality, it may not be necessary so long as there are provisional clauses indicating that the public will not be deceived. This implies that the licence will not be considered a naked licence, provided that the licensor relies on and is familiar with the individual efforts of the licensee to control quality (Dolan 1). From the case scenario, it is not indicated that Agbio went against their licence agreement or there was a dispute between Agbio and Ben regarding breach of contract. This can be assumed that Ben relied on the individual efforts of Agbio for quality control since Ben was not given express contractual right to inspect or supervise Agbio’s operations. Moreover, from the case described, there is insufficient evidence to establish whether there was quality control in place since the agreement was silent on the matter. Moreover, it is significant to understand that control of quality does not necessarily imply that the goods and service licensed must of high quality, but just of equal quality whether it is low, middle or high. The point here is that the consumers are to assume that the quality and nature of services and goods sold under the ‘Brensome’ trademark at all outlets licensed will be predictable and consistent. Moreover, given the nature of products in the case (genetically modified potatoes), it is reasonable to assume and expect that Ben ensured quality of his products before releasing them to the market through Agbio for commercialization.

Question 3

3 (a) the question has been answered in question 1 (a)

3 (b) the question is similar and has been exhaustively been answered in 2 (b)

Question on controlling the exploitation of personality rights:

Q1- discuss critacally Irvine v Talksport case in that relation. (Passing off)

The parties in the case of the case of Irvine v Talksport was Irvine who was the claimant and Talksport who was the defendant. Passing off according to Owen, is a common law tort that can be applied in enforcing trademark rights that are not registered (22). The law of Passing off protects a trader’s goodwill from misrepresentation. Moreover, it prevents one trader from false misrepresenting his services and goods as being services and goods of another trader. Similarly, it prevents a trade from showing out his or her products and services as having a connection or association when this is false (Hertzog 128).

In the case of Irvine v Talksport, the defendants in the case ran a radio station referred to as Talksport, formerly referred to as Talk Radio. The company which did marketing for them sent out several promotional materials to many people who are responsible for advertisement placement. Amon the materials sent was a brochure which featured a popular race driver on its cover picture (UCC 1). The right to using the picture on the promotional materials had been obtained legally, but the company which performed the marketing had edited the picture by replacing the mobile phone which the claimant held in his hands and replaced it with a radio written “Talk Radio.” According to the claimant in the case, it was a passing off since the market understood that he had endorsed Talk Radio. In his ruling, the judge held that the court noticed the judicial fact that it was very common for the celebrities or the famous individuals to exploit their images and names by a way of endorsement. Consequently, the judge held that the claimant had a good will or a substantial reputation and the defendants created a false message to the public hence were liable for the damages (para 6).

In the case of Irvine v Talksport, it is evident that the doctored image of the claimant clearly showed a false message that he had endorsed the radio station of the defendant. The action of the defendant of falsely producing a wrong message which the market understood to mean that the defendants goods and services have been recommended or endorsed by the claimant, made the claimant succeed in passing off (para 10).

Q2- discuss critically Fenty v Topshop CA 2015 case. Include in the answer the following: 

a) Statutory provision 

The statutory provision in the Fenty v Topshop CA 2015 case is law of passing off. This provision is founded on a fundamental principle that a person show their services ad goods as those of another person. The action from this provision protects the reputation and goodwill of the plaintiff from any damage that arises from misrepresentation by the defendant (Wadlow 55).

b) Elements of action

Rihanna, who is one of the recording artists that are popular globally complained in court that Top shop, a fashion retailer that is well known, selling sleeveless t-shirts that features her photograph that was taken from a video shoot for her album called Talk That Talk. The copyright of the photograph in question was owned by the photographer and has licenced for use by Topshop. According to Rihanna, the selling of the t-shirts with her photograph infringed her rights and amounted to passing off as many people purchasing them would think that she has licenced and endorsed it when in reality she has not. Furthermore, she argued that customers would purchase these t-shirts since they liked the image and product for their own qualities. Furthermore, there was nothing labelled or written on the t-shirt to indicate that it was an item from Topshop and therefore the general public would not think that it was their merchandise. Rihanna maintained that the t-shirt was a fashion led garment of high quality that was totally different from the standard merchandise for pop star.

c) How the judges apply the tort of passing off to this case?

Rihanna was a famous pop star globally who ran very large endorsements and merchandising. Additionally, she was regarded by many people as a style icon mostly young females with an age range of 13-30 years. These group of people were interested in what they believe to Rihanna’s view about fashion and style. Therefore, of Rihanna was seen to approve or wear of a clothing item, in the minds of these people, this was an endorsement. In addition, the fact that the design led garment was not a simple plain t-shirt of low quality, in the purchases mind would not be understood ruling out the idea that it was an item of Rihanna’s authorised merchandise or a product endorsed by Rihanna.

The real issue in this case was misrepresentation. In applying the tort of passing off to this case, the judge considered different aspects of specific circumstances of then case such as:

1. The absence of comments on Topshop’s website that indicate that anybody who had purchased the t-shirt believing that Rihanna had authorised it and lack of other supporting evidence were import and relevant points in favour of Topshop but not entirely a determiner
2. Topshop in its defence made considerable efforts in emphasising the connections in the mind of the public between famous stylish people and their store such as Rihanna. An example of this connection was their shopping competition which they organised and held in in 2010 where they offered the entrants the opportunity of winning personal appointment for shopping with Rihanna at Oxford Circus, their flagship store.
3. Top shop also tweeted a week before launching of the sale of the t-shirt the fact that Rihanna was planning to visit their store. The judge in the case rejected the submissions of Topshop that this was just simply gossip and chatter. In particular, considering that the nature and age of the relevant customers, the social media and internet were an important part in both Rihanna’s and Topshop’s business. The social media and internet constitutes some of the fundamental channels in which Topshop and Rihanna communicated with their customers and fans. Topshop mentioned Rihanna because they though doing so would increase the sale of their products
4. The mere fact that there was nothing to show authorisation by artist on the neck label or swing tag firmly pointed against authorisation was not sufficient enough to replace the impression that the t-shirt was authorised. Despite the fact that a good number of buyers would purchase the garment without asking the question about authorisation at all, a large percentage of the people considering the garment would be made to think that the t-shirt was authorised by Rihanna. The fans of Rihanna would recognise the particular photograph of her and relate it to her recent album/. For these people, the fact that it was licenced by the artist would be the motivating factor for then to buy it. Some would purchase the garment because of the thinking that Rihanna had approved it, while other because of the perceived authorisation value itself. In all these instances,, the purchasers would have been deceived

As the judge found, if a large percent of buyers were likely to be deceived into purchasing the garment because of the false presentation that it had been authorised by Rihanna, then definitely it would be damaging to the goodwill of Rihanna. This would also amount to loose of sales in the merchandising business of Rihanna and this represents loss of control of the reputation f Rihanna in the world of fashion. From the court case, it was evident that the tort of passing off was the only ground in law for Rihanna to object the sale of the t-shirts that bore her image

d) How Rihanna was successful for the unlawful image in the case?

Rihanna was successful for unlawful image in the case because she argued from the tort of passing off point of view. Topshop counter argument in court was that Rihanna was claiming an image right in addition to seeking have a control of licensing of her likeness and name, something which English law did not recognise. The argument by Topshop could not be supported sufficiently in court unlike Rihanna who argued and supported her claim which satisfied the court. In his ruling, the judge made it clear that the Fenty v Topshop CA 2015 case was not concerned with the image rights. Furthermore, he made emphasis that currently in England there is no such thing as a general right by anyone else or for a famous person to control their image reproduction

e) How to know if there is a compensation?

A claimant in an infringement court case who has succeeded is eligible to “damages as of right.” If it appears that the claimant have suffered above the nominal damage, then generally the claimant will be entitled to “inquiry as to damage.” Hertzog explained that inquiry as to damage is a separate legal hearing and process with the sole purpose of ascertaining the extent of the losses of the claimant and to restore him or her to the position which he would have been had the infringement not been committed (72).

f) When passing off will be applicable? 

Passing off will be applicable in in enforcing trademark rights that are not registered. The law of Passing off protects a trader’s goodwill from misrepresentation. Moreover, it prevents one trader from false misrepresenting his services and goods as being services and goods of another trader. Similarly, it prevents a trade from showing out his or her products and services as having a connection or association when this is false (Owen 37). In the case of Rihanna, Topshop misrepresented his image as having endorsed their t-shirt, of which was false and deceiving to the public, hence the tot of passing off was applied.

Q3- “Recent English case law has firmly established the celebrities and their licensees enjoy an unlimited right in controlling the commercial exploitation of their personality aspects.” Discuss the statement with reference to relevant case law. 

Celebrities in the world like Tiger woods, Marha Steward Paul Newman among others in their public persona enjoy powerful rights. The celebrities’ identity rights include their voices, faces, names and any other distinguishing characteristic. The question is who should be reaping the benefits of the images of celebrities and how allocation of rights should be done. Some recent tendencies in the law such as the recent English case law have created more expansive identity interest protection (Dreyfuss 130). The celebrities are amusing, communicate status and set moods. They are a representation of how their utilizers perceive themselves culturally and politically (Dreyfuss 124). Therefore, the paper believe that the law, must balance the interest of the celebrities in controlling their images with the interest of the public in using the images as a communication means. Countries in the common law like United Kingdom are beginning to embrace the right of protecting personas. For instance, until recently, the plaintiffs in United Kingdom have not been successful in persuading the courts that commercial exploitation of a personality that is not authorized can fall within the tort of passing off (Seville 4). The situation in United Kingdom is of particular interest in this paper since it represents an example of a developed country that is resisting inevitable creation of expansive and new intellectual property rights. Another question that need to be asked is whether lack of specific protection for the personas of the celebrities an anachronism in the world today given the huge economic stakes in mechanization of famous identities. The markets of celebrities go beyond the national boundaries and this has resulted to the steps towards having an international norm on publicity rights issue (Dinwoodie 472). This paper will discuss whether the Recent English case law has firmly established the celebrities and their licensees to enjoy an unlimited right in controlling the commercial exploitation of their personality aspects.

Publicity rights protection in United Kingdom

Privacy and publicity rights

Under publicity or privacy rights, the protection of the personas of the celebrities has not achieved any international norm status. There is also no global standard for protection of publicity rights (Reiter 680). In protecting the rights of publicity and identity, the British law has taken a path that is radical. United Kingdom has no common or statutory law tort, for privacy rights, in cases of privacy invasion. Brazell pointed out that privacy right in Unite Kingdom were not recognized at all until the incorporation into the British law in 1998, the European convention of human rights (407).

On the other hand, Brazell argued that British law does not recognize anything such as publicity rights (408). Despite the fact that publicity rights in united kingdom has not been given any common law or statutory recognition, the British law has protected ones identity aspects and its commercial value in a fragmented fashion through passing off and traditional trademark law.

The British law and the age of mechanization: the case of Eddie Irvine

In United Kingdom, the law of passing off and trademark law has been the preferred method of identity interest protection. According to Brazell, for many years, the significance of the concept of passing off was limited by the British courts, which needed the defendant and the plaintiff to be engaged in a common activity field (Brazell 409). UCC Stated that the breakthrough case occurred in 2002 under the British law of Irvine vs Talksport Ltd. the case of Irvine vs Talksport Ltd, was discussed earlier in one section of the paper

The European convention on Human rights (ECHR) and privacy rights

Through the European rights convention, the privacy rights crept into the British law privacy rights in a likeness of a person have increasingly been recognized in United Kingdom and at the European level. According to Campbell V. MGN Ltd, the key legal justification for the change was the ECHR Article 8(1), which provides the right of respecting the private and family life of a person (459). The courts in united kingdom which for a very long time has refused recognizing any right of privacy in common law, have depended on this provision to apply to the celebrities the power of control how and when the media may report or publish their image on their private lives (para 7).

Dinwoodie indicated that these decisions are not suggesting that ECHR needs member states to recognize rights of publicity (481). It is important to note that ECHR has been very strong in pushing for the concept of privacy for the celebrities and the ordinary people. Moreover, it now provides a basis in which the British courts may extend civil liberty standard principles eventually to encompass the rights of publicity. The people or organizations who use personalities or celebrities in their media adverting obtain consent from the involved estates or people.

Breach of confidence actions have also been extended to protect the commercial interest of the celebrities in private information, and these also includes private occasion photographs, by treating it similar to a trade secret (Douglas v. Hello! Ltd 914). Catherine Zeta-Jones and Michael Douglas got married under serious security precautions (Douglas v. Hello! Ltd 819). Zeta-Jones and Douglas granted exclusive rights to OK magazine to publish their taken wedding photographs by their photographer and which has been approved by them at a price of £1 million after an unsuccessful bid by Hello Magazine for the same rights (Douglas v. Hello! Ltd 890). A paparazzo photographer infiltrated their wedding who tool photos that were unauthorized surreptitiously, of which six of them were published by Hello Magazine (Douglas v. Hello! Ltd 892). The couple sued the magazine and the judgement was held in their favor. The court held that it was a misuse of private information by publishing the photographs and this justified the distress damages. Moreover, the court held that it was a misuse of commercial information that was confidential and this justified the damages for commercial interest injury (Douglas v. Hello! Ltd 916). Furthermore, the judgement favoring OK magazine was reversed since under the terms of the contract, OK had not right apart from the exclusive license of polishing the photographs approved. (Douglas v. Hello! Ltd 918).

According to Reiter, English courts have in several instanced found confidence breaching where the information published is regarded as confidential (Reiter 690). This is either if the party disclosing the information had knowledge of the information confidentiality or was based on the person’s reasonable expectations who rights were violated. Under the rationale of breach of confidence, the House of Lords confirmed that Naomi Campbell, a model and celebrity well known could get damages from a newspaper which published her photographs leaving a center for drug rehabilitation. The court found out that the photographs taken of Naomi Campbell outside a center for drug rehabilitation and the publisher should have known or knew that Campbell the model had some expectation that the information about her addiction to drugs and treatment would remain private despite the fact that she was on a public street (Campbell V. MGN Ltd 460).

False endorsement action as an international norm

The images of celebrities go beyond their national boundaries. Famous soccer players, basketball stars and golfers have international recognition. Moving towards an international norm which will protect the developed celebrity’s goodwill will be a big achievement for transnational commerce. The benefits of an international norm to protect rights of a personality based on false endorsement would very much. The protection of the celebrities would be based on the commercial uses of a persona of a celebrity to mislead the public to believe that they have endorsed the product. According to Brazell, false endorsement action serves both the purposed of consumer protection against deception while safeguarding the commercial value and goodwill that the celebrities have built in their identities (410).

In conclusion, United Kingdom is at crossroads in the identity rights protection but the case law trajectory is trending clearly towards greater rights. It is still a matter to time to tell whether privacy laws recent developments in United Kingdom will mutate the right of publicity. Furthermore, in United Kingdom, the trend towards publicity rights recognition is already taking place through expansive privacy based notions on a breach of confidence theory. The British law, with the case of Irvine vs Talksport Ltd, has adopted the false endorsement action that were derived from the passing off principles. The false endorsement action could be the foundation for international norm to protect the celebrity identity rights

Questions on patent licensing:

Question 1 (A)

The kinds of clauses that should be included in the patent licensing agreement as means of protecting the University’s intellectual property interests include the following:

Identification of the parities clauses

This clauses defines the agreement made between the party who has the right of granting the license and the other party who will exercise the license. This clause includes the identifying information of both parties that are involved in the transaction. These include the name of the company if the licensor /licensee are an organization and their registered address. However, if they are individuals then their names with their residential address should be provided (n.a 34).

Recital clause

This clause explains the background and context of the license in addition to helping in agreement interpretation. It is in the recital clause that the idea or purpose behind the transaction is elaborated. All the details must be included, with all the sequence that led to the transaction in clear terms (n.a 76).

Definition clause

The clause acts as the agreements dictionary. Critical terms influencing the transaction should be clearly defined. It is important to take note that if terms or words are defined in an agreement, the meaning defined will be used over other common meanings of terms or word. Materials or products licensed should be clearly defined since the whole transaction is based on them (Lennon 24).

Grant clause

This clause sets out the extent and scope of the granted rights to the licensee, and the limitations to the granted rights. It is significant to define clearly what the license is supposed to do y using proper and clear grant language. Similarly, the grant clause may also explain certain restrictions on a license. For example, sub licensing restriction, modification of the fundamental character in the work licensed amongst others (n.a 37).

Intellectual property (IP) rights clause

This forms an integral part in patent licensee. The licensor should retain the IP ownership being granted through the license. Moreover, the clause should state that the agreement between the parties cannot be construed as a transfer or assignment of IP ownership (n.a 45).

Consideration clause

This clause outlines the consideration or the compensation amount owed to the licensor. The clause also outlines the frequency and timing of payment among others. The details of the mode of payment/payment among others can be either be explained under the consideration clause or even be given as an agreement schedule (Lennon 67).

Obligation of the parties clause

The clause states particular obligations that must be met or fulfilled during the agreement term and even beyond the termination or expiry of the agreement. The obligations of parties should be unambiguous and clear. These obligations may vary from negative obligations like the duty of not competing with the licensor, to positive obligations such as duty of reporting any infringement (n.a 51).

Termination and term clause

Any agreement license should have well defined provisions and terms that outline when the parties may terminate the agreement and the reasons for termination. Moreover, if termination of an agreement is done before the terms completion, the prior termination consequences should also be laid down clearly (Lennon 78).

Question 1 (B)

The likelihood of Triton successfully contesting ownership of the later patent is very high.in the contract signed between triton and Ida Innovation, the agreement stated that Ida Innovation assigned the patent for the technology and “all improvements” to Triton Limited for the further therapeutic development of the invention. Therefore, given that the scientists worked for Cranford University and Ida Innovation being the university’s transfer company, owned the patent for the technology implies that they had the patent right of the improved technology.

Q3- Discuss improvements and who owns improvements in patent licensing.

Basic patent refers to a pioneering patent type or any prior patent. On the other hand, improvement patent is a patent adding to the basic patent technology (Silverman 1). Broadly explained, improvement can be elaborated as something modifying protons of basic patent technology other than merely offering an alternate approach to achieve similar result.

When making considerations of an improvement patentability, the whole basic patent disclosure is reviewed so as to ascertain whether there are technical differences that are meaningful between the basic patent disclosure and the improvement. According to Silverman, if there exists technical differences, then the improvement is patentable since it has requisite statutory novelty (para 10). However, if the difference s between the basic patent disclosure and the improvement such that a skilled individual in the art would find the differences so obvious, then the improvement is not patentable

Q4- TTBER and impact of such a license.

Technology Transfer Block Exemption Regulation (TTBER) provide the fundamental framework of competition law for licensing agreements that relate to technology (Barazza 45). The impact of TTBER license varies since it no longer protects the common licensing provisions such as:

1. Exclusive obligations of grant-back concerning some licensee improvements
2. Termination rights of the licensor if a non-exclusive license challenges the licensed patents validity
3. Some restrictions on passive sales on licenses (Arnold & Porter 1)

However, TTBER also has the following impacts on the areas it covers such as

1. Technology rights
2. Licensing agreements of two parties contracting
3. Production activity relevance by the licensee. That is production of products in the contract by the licensee o the basis of the technology licensed (Curley 54)
4. Market share where the combined market share of the parties is not exceeding 20% where the parties are competitors. Similarly, the TTBER applies where the individual market shares of the parties is not exceeding 30% and the parties are not competitors
5. Hardcore restrictions (Arnold & Porter 1).

Q5- possibility of new patent application

There is no possibility of new patent application. Ida Innovation owns the patent and has registered it as the inventive entity as much as the investor s were the scientists at the university. The patent laws allows the inventive entity to be named in the basic patent, and the basic patent is citable against an improvement during application for patent (Silverman 1). The statute also requires that any patent application that is geared towards improvement is made one year after issuance of the basic patent, the basic patent will be used as a cross reference or prior art reference that when evaluating patentability, must be considered (para 9). Therefore, any improvements made by the scientists or triton Limited will be an improvement but not new patents since the basic patent is registered with different incentive entity, which is Ida Innovation

Work Cited

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Barazza, Stefano. The Technology Transfer Block Exemption Regulation and Related Guidelines: Competition Law and Ip Licensing in the Eu. , 2014. Internet resource.

Bloomberg Law,. ‘Naked Licensing Of Trademarks’. Bna.com. N.p., 2011. Web. 1 July 2015.

Brazell, L. “”Confidence, Privacy and Human Rights: English Law in the Twenty-First Century.” European Intellectual Property Review. 27.11 (2005): 405-411. Print.

Campbell V. MGN Ltd., [2004] 2 A.C. 457, 459–60 (H.L.).. 2015. Print.

Curley, Duncan. Intellectual Property Licences and Technology Transfer: A Practical Guide to the New European Licensing Regime. Oxford: Chandos Publishing, 2004. Print.

Dinwoodie, Graeme B. “A New Copyright Order: Why National Courts Should Create Global Norms.” University of Pennsylvania Law Review. 149.2 (2000): 469-580. Print

Dolan, Christopher. ‘IP: The Bare Facts On Naked Licensing’. Insidecounsel.com. N.p., 2011. Web. 1 July 2015.

Douglas v. Hello! Ltd., [2005] 3 W.L.R. 881, 914 (Ch. App.).

Dreyfuss, R C. “We Are Symbols and Inhabit Symbols, so Should We Be Paying Rent? Deconstructing the Lanham Act and Rights of Publicity.” Columbia Vla Journal of Law and the Arts. 20.2 (1996): 123-156. Print.

Hertzog, Dirk W. R. Injurious Falsehood and Passing Off: A Critical Comparative Analysis. , 1972. Print.

Herzfeld, Oliver, and Richard Bergovoy. ‘Trade Mark Licensing Made Easy’. The Beanstalk Group. N.p., 2007. Web. 1 July 2015.

Lennon, Michael J. Drafting Technology Patent License Agreements. Frederick, MD: Aspen Publishers, 2007. Continually updated resource.

NOLO,. ‘What Is A Naked Trademark License? | Nolo.Com’. Nolo.com. N.p., 2015. Web. 1 July 2015.

Owen, Gail A. The Development, Present Ambit and Future of the Tort of Passing Off. , 1980. Print.

Oxbridge,. ‘Licences And Proprietary Estoppel Notes | Oxbridge Notes The United Kingdom’. Oxbridgenotes.co.uk. N.p., 2015. Web. 1 July 2015.

Perlman, Victor, and Richard Weisgrau. Licensing Photography. New York: Skyhorse Publishing, Inc, 2010. Internet resource.

Reiter, E H. “”Personality and Patrimony: Comparative Perspectives on the Right to One’s Image.” Tulane Law Review. 76 (2002): 673-726. Print.

Schmitz, Patrick. Exclusive Versus Non-Exclusive Licensing Strategies and Moral Hazard. London: Centre for Economic Policy Research, 2007. Print.

Seville, Catherine. “Peter Pan’s Rights: “to Die Will Be an Awfully Big Adventure.” Journal of the Copyright Society of the U.s.a. 51.1 (2003): 1. Print.

Shemtov, Noam. ‘FOSS License: Bare License Or Contract?’. Centre for Commercial Law Studies Queen Mary. N.p., 2015. Web. 1 July 2015.

Silverman, Arnold B. ‘The Relationship Between Basic And Improvement Patents’. Tms.org. N.p., 2015. Web. 1 July 2015

Standard Clauses in a Licensing Agreement. White Plains, N.Y: Sheridan House, 1981. Print.

Trademark and Technology Licensing. St. Paul, MN: Minnesota Continuing Legal Education, 1996. Print.

UCC,. ‘Irvine V. Talksport Ltd Ch D 25 March 2002’. Ucc.ie. N.p., 2015. Web. 29 June 2015.

Wadlow, Christopher. The Law of Passing-Off: Unfair Competition by Misrepresentation. London: Sweet & Maxwell/Thomson Reuters, 2011. Print.

Werra, Jacques . Research Handbook on Intellectual Property Licensing. Cheltenham, UK: Edward Elgar, 2013. Print.

Herman Bailey

With a student-centered approach, I create engaging and informative blog posts that tackle relevant topics for students. My content aims to equip students with the knowledge and tools they need to succeed academically and beyond.

Analyzing Factors for Ford’s Entry into the Japanese Market

by Herman Bailey | Jun 23, 2023 | Essays | 0 comments

Q 1: What Economic, cultural, political-legal, or other environmental factors should ford take into consideration in exporting its cars to japan and why? What specific opportunities and threats can be extracted from the Japanese environment?

Several factors influence the spending behavior of consumers/ the factors to include the economic, cultural, political, legal, and environmental factors. Economic factors primarily influence what a customer will buy and if they can service and maintain the product without cutting too deep into their budget (Lynn, 2011). The economic factors Ford should have in mind are that the prices of gasoline in Japan are extremely high. With the Properly developed public transport, system vehicles are seen as ornaments. To make sure that the Japanese people invest in Ford automobile the vehicles exported to Japan should not be guzzlers. At the same time, the vehicle parts need to easy to find and replace without so much effort and money. Another economic factor is the stock market; the yen gaining strength over the dollar has directed many Japanese consumers to invest in foreign products. For instance, Mr. Tsuzuki says that the Mustang is relatively cheaper than most locally produced Japanese sports car.

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Aside from the economic factors, culture seems to play a primary role in influencing the buying behavior of vehicles in Japan. The Japanese people prefer spacious vehicle. They say this comes in handy when going for family trips or traveling for recreation purposes. At the same time, it is useful if the Japanese family is large. With these facts in mind, it is accurate to suggest that the only way Ford can have opportunities in the market is to import more spacious vehicles suitable for the Japanese family. Besides, the inclusion of safety equipment such as the airbag will be more attractive to the Japanese middle-class consumer. Consequently, Japanese vehicles are usually for ornamental purposes. The Japanese consumers just like Mr. Tsuzuki suggest the physical appearance of the vehicle goes a long way in influencing the consumer to invest in a product. Ford should adopt a distribution strategy for its brands. Since the Japanese people are accustomed to the door-to-door marketing strategy, Ford will have to devise a better mechanism of distribution or use the door-to-door strategy. A showroom mechanism would be advantageous since the women no longer stay at home but go to work.

Ford should also take into consideration the Political-legal factors as it tries to get into the Japanese market. Japan Toyota Company has occupied the market niche for an automobile in Japan. Ford can offer its vehicles at a discount to overcome the political barrier. The company can also work together with Japanese motor vehicle companies to produce vehicles that most Japanese identify with (Takeuchi, Osono & Shimizu, 2008).
The Japanese consumer is attracted by the spacious nature and good physique of the vehicles. The more spacious a vehicle is, the more likely that a Japanese consumer will invest in it. The main reason for this is that the vehicles are used for family recreation trips and road trips to the countryside. Therefore, Ford can compete with the existing automobile dealers in the Japanese market by tailor-making every vehicle fits the Japanese consumer. The Japanese consumer also that, minds a lot about their safety hence the need to have each vehicle fitted with these safety airbags. The Japanese will also buy vehicles that are not only easy to maintain but are fuel-efficient. The prices of gas in Japan are relatively high and with the developed public transport system, most people would rather use the public mean instead of incurring high costs when using personal vehicles. Also, the typical Japanese consumer is accustomed to the door-to-door sale of products. Such customers are said to be loyal to a certain product and are, therefore, not easily swayed.

Q2: what features of Japanese consumer behavior have Ford to take into consideration in selling its goods to the Japanese market? What is the nature and characteristics of the competition faced by Ford in this market?

The features of consumer behavior that Ford needs to take into consideration are diverse when selling their goods to the Japanese market. They include the following:

a) Culture and societal environment

Culture is very vital when understanding the behaviors and needs of a person. Throughout the life of a person, he or she will be influenced by his cultural environment, friends, and family or the society that will impart preference, values, and common behaviors that exist in their culture. As a brand, Ford Motors need to understand and take into account the inherent cultural factors in the Japanese market for them to adapt their products and their marketing strategy (Szmigin & Piacentini, 2015). These will play a significant role in the behavior, habits, perception, and expectations of consumers. For example, in Japan, the culture of inviting someone to your home does not exist in their local customs. They prefer to do business with business partners and friends in a restaurant. Therefore, the salespeople of Ford need to take this into account when they need to meet their potential clients (Velayudhan, 2007).

b) Social classes
Schütte & Ciarlante (1998) defined social classes as groups that are ranked by a form of social hierarchy or are more or less homogenous. People in the same social class have similar lifestyles, values, behaviors, and interests. According to East, Vanhuele & Wright (2013), generally, people assume three groupings of social classes, and they include upper, middle, and lower classes. People from various social classes tend to have different consumption patterns and desires. The disparities result from the difference in their power of purchasing. Therefore, when Ford is offering its products in the Japanese market, they need to consider the social class. They need to provide cars that are affordable to the people in the middle class, other products that are affordable to the upper class and the social class according to their purchasing powers

c) Membership groups and reference groups
These are social groups to which an individual belongs and eventually will influence him. According to O’Dell & Pajunen (1997), these membership groups are normally related to leisure, hobbies, work, residence places, age, and social origin. As much as the level of influence may vary, it is observed that there are common trends of consumption among the same group members. The understanding of Ford Motors f the specific features (lifestyle, values, mindset) of each group will allow it to target better their messages for advertising

d) Family
This is the most influencing factor since it forms a person’s socialization environment and will shape their personalities and help in acquiring values. Moreover, families play a significant role in developing opinions and attitudes of different subjects such as the perception of brands of products, consumer habits. Therefore, Ford Motors need to ensure that their brands are seen as a family brand for it to become a consumer habit for the children, young adults, and parents when they grow up (Szmigin & Piacentini, 2015).

e) Age and the way of life
A consumer at age 70 or 20 does not purchase the same products or services because their values, lifestyles, activities, the environment, consumer habits, and hobbies evolve throughout their lives. Moreover, the factors that influence the process of buying decisions may also change. For instance, the youths at the age of 25 years may be influenced by the social value of Ford Vehicles in his or her decision (Velayudhan, 2007). Similarly, the individual’s life cycles will also influence their values, lifestyles, and behavior of buying depending on whether the individual is about children, in a relationship, or is single. Furthermore, the kind of city and region of the country where individual life will also play significant roles such as the countryside, small town or a large city. For this reason, Ford Motors must identify, measure, understand and analyze personal factors, criteria influencing their customer’s shopping behavior are for them to adapt.

f) Revenue and purchasing power
An individual’s purchasing power will have a decisive influence on their purchasing decisions and behaviors based on their capital and income. Purchasing power affects what they can afford, the level of importance of price, and perspective on money in his purchasing decisions. Therefore, Ford Motors need to offer different products according to different categories of purchasing power (Schütte & Ciarlante, 1998).
Ford Motors face more competition in the Japanese market from the local vehicle manufacturer and also other external entrants into the market. The nature of competition in the Japanese automobile industry can be described as a perfect competition. According to Economics Online (2015), perfect competition according to Economics Online (2015) is where the market competition is at its highest level possible. The characteristics of this competition according to East, Vanhuele & Wright (2013) include:

1. The existence of perfect knowledge with no time lags or failure in the information. There is freely available knowledge to the market participants which implies that there is minimal risk-taking
2. It is assumed that the consumers and producers make rational decisions since they have the perfect knowledge to maximize their self-interest. The producers look at ways of maximizing their profits while consumers on how to maximize their utility
3. No entry barriers or exist out of the market
4. Each input unit like the labor units is also homogenous
5. Firms produce identical, homogeneous, output units that are not branded
6. No single company can influence the market conditions or market price
7. Existence f a large number of companies in the market
8. No need for regulation by the government except only in making the market more competitive
9. The companies can only make abnormal profits in a short time, but make normal profits in the long run
10. It is assumed that there are no externalities, which implies no external benefits or costs

Q3: what possible criteria did Ford use in selecting Japan as a market for its cars? What were the possible target segments for Ford in the Japanese market? How did Ford position Mustang in this market?
The possible criteria Ford used in selecting Japan as a market for its cars is by applying Porter’s five forces model. This model is used in analyzing five competitive forces shaping every industry and also is significant in determining the weaknesses and strengths of an industry (Kogan & National Bureau of Economic Research, 2009). This model assumes that five vital forces help in determining competitive power and they include:

Supplier power: this assesses how easy or difficult for the suppliers to drive up their prices. The supplier power is driven by the supplier’s number, their strength and control over an industry, and the cost of changing from one supplier to the other (Amir et al, 2003).

Buyer power: this assesses how easy it is for the buyers of the products to drive up down prices. This is also driven by the number of buyers in the market, the cost of the changing from the products a company offers to its competitors. Few powerful buyers imply a company will dictate the terms (Amir et al, 2003).

Rivalry in competition: this depends on the capability and number of competitors. A company with many competitors who offer quality products and services is more likely to have little power since buyers and suppliers will go to the competitors for better deals (Amir et al, 2003).

The threat of substitution: this is driven by the customers’ ability to find other ways of getting similar products. Easy substitution weakens the power of the seller

The threat of new entry: this is affected by the other companies’ abilities to enter the same market. If the cost of entry is little, there us few scales, or the company has little protection for its products, then new entrants can enter easily and quickly and this weakens the position in the market. On the other hand, durable and strong entry barriers preserve favorable positions of a company (Amir et al, 2003).
Market segmentation refers to aggregating prospective buyers into categories that have common needs and will also similarly respond to a marketing action (Cahill, 2006). Possible target segments of Ford include:

Geographic segmentation: these will be segmented according to geographical variables such as regions within Japan such as plain and hilly areas. Another variable is the size of a metropolitan area like towns and cities. Population density will also be factored

Demographic segmentation: this variable will be segmented according to gender, age, family sizes, income, generations, education, occupation, and family life cycles (single, in a relationship, and married with children) (Wedel & Kamakura, 2000).

Psychographic segmentation: this will be grouped according to their lifestyles. For instance, interest, activities, opinions, values, and attitudes
Behavioral segmentation: this will be based on customers’ actual behaviors towards the Ford products. Some variables of behaviors include; usage rate, benefits sought, user status, brand loyalty, occasion (events and holidays that stimulate purchase), and readiness to buy (Hsu, 2010).
Ford positioned Mustang in the Japanese market in the high-profile niche market. This falls under psychographic segmentation since Mustang is left-handed, and vehicles in Japan are made right-handed. Moreover, Ford positioned Mustang against the Nissan Z cars and Toyota Supra cards. Mustang targets clients who purchase based on their lifestyles that are dictated by interest, activities, opinions, values, and attitudes. The car offers safety features like anti-lock brakes, airbags that are costly in Japanese cars. Moreover, it is cool, big, and durable. Mustang was also positioned for the demographic segmentation since it is favorable for customers with families since it’s big and can accommodate many people. Additionally, it is cheap compared to the locally manufactured vehicles

Q4: which specific method did Ford use to enter the Japanese market? What are the possible advantages and disadvantages encountered by Ford Using this method? What other entry methods to Japan would you suggest to Ford and why?
Ford Motors used direct export as a specific method of entering the Japanese market. With this method, a company produces its goods in their home country and then sells them to their overseas customers (Bennett, 1998). For example, Ford Motors used direct exporting to sell their cars either through the distributors who gained ownership or by using overseas agents who get commissions. In this scenario, Ford Company shifts its focus majorly on distribution. Similarly, using this method, Ford could export their automobiles using their subsidiary in Japan by sending their marketing experts to organize for their new car brands in the Japanese markets (Business Teacher, 2015).

Possible advantages encountered by Fording using direct export method is related to the contract to manufacture. Ford Motors has been able to benefit from not investing in plants and not worrying about their plant investments especially when there is political instability (Lymbersky, 2010).
The disadvantage of the direct export method is that first,t the potential profits accrued from manufacturing will go to their partner who is a local instead of the main company. Another disadvantage is the difficulty in finding a production partner who is trustworthy and satisfactory in the Japanese market since that person needs to be trustworthy and reliable for them not to cheat Ford Motors. Lastly, another disadvantage is that Ford might face the possible problem of quality control because production is out of their main company (Business Teacher, 2015).
Other entry methods that Ford could use in entering the Japanese market include the following:

Indirect export: this is when a company sells its products to a third party in a foreign market who then sells it locally
Licensing: This is another less risky method. Using the licensing method, the licensor grants a company in a foreign market a licensee of producing the same product also to using the same brand name. In return, the main company will earn royalty payments from its sale (Learn Marketing, 2015).
Franchising: using the franchising method, a company puts will assemble the ingredients that made them successful in their home markets and then franchised the package to an investor overseas. The holder of the franchise may help in providing marketing and training on the products and services.
Contracting: This is another market entry method overseas that involves ideas exchange. The company that manufactures the product will contract out the production of its products to another company to produce on their behalf. This method is beneficial since it saves the company from exporting their finished products to the foreign markets (Learn Marketing, 2015).
Joint ventures: this method is where two companies come together to form an organization that operates in a host country. This is beneficial in sharing risks in entering new markets. The two companies also share expertise and knowledge to help in the company’s development, and also the profits will be shared
Manufacturing abroad: this is where the company makes the ultimate decision to establish a plant to manufacture its products abroad. This is also advantageous to the manufacturer since the host government may give the company some tax advantages to attract more inward investments and also create employment in their country (Learn Marketing, 2015).

Q5: what adjustments has Ford made on each of the elements of its marketing mix in exporting to the Japanese market and why? What market strategy recommendations would you make to Ford Motors to help it to be successful in this market?

A marketing mix can be defined as a combination of several factors that are given priority by the company when introducing a product into the market. The choice of the marketing mix is highly dependent on understanding consumer behavior and prioritizing what is important to the consumers of the product, in this case, Ford Motors. There are several adjustments that Ford made on each of the elements of its marketing mix in exporting to the Japanese market, and reasons why it made the adjustments

Product
The first concern in the marketing mix is the product itself. The product that Ford Motors planned for was to please the needs of a specific target. The product is the first concern of the company. Lamb et al (2008) stated that through focused group discussions and surveys, the company can understand the expectations of the consumer’s concern Ford Motors and, therefore, plan to meet such expectations. This means that consumers should be involved in the development of the product, which Ford Motors managed to do successfully. The adjustments Ford made on products in Japan include the introduction of Mustang, which is left-handed despite cars in Japan being right-handed. This adjustment was made to target high profile niche market. Other adjustments of Mustang include the addition of safety features like anti-lock brakes and airbags which are costly in Japanese cars. Moreover, Ford introduced the Probe, Laser, and Mondeo, which are right-handed vehicles to compete in the compact sedan market.

Price
Perhaps the most important factor in the marketing of any product is the price. The price of a product could be too high that it is unreachable for the consumers or too low that it does not seem quality enough. The research must be completed at the right price for the product. Ford Motors used the Market penetration pricing system, where the price of the Ford Motorswase set slightly lower to attract consumers and, therefore, penetrate a market already saturated with many vehicles. It is important to note that the Mustang is a luxury product, and therefore if the pricing is too high, it will be ignored by a majority of consumers. With the current global trends, pricing should be just right, (Lodato 2008). For example, the Mustang, which Mr. Tsuzuki bought cost about 2.3 million yen or about $22,000, This was about $7,000 lower compared to the Japanese sports car price. Moreover, Ford is pricing its word cars at $2000 to $3000 below compared to the Nissan Altima or Honda Accord versions

Promotion
Since the Mustang is a new product in the market, promotion of the same is vital. Aggressive advertising with the right message will leave many of the consumers with the desire to purchase the product. To create such a desire, the company requires engaging the consumer through the right channels. Some consumers, a majority of them, in fact, are not aware of the product, where it is found, and what it can do for them. The promotion part of the marketing mix covers all this information (Lamb et al 2008). The adjustments that Ford Motors made on promotion include a multimillion-dollar ad campaign to position Fords products as fun family cars

Place and distribution
Finally, Ford Motors is concerned with the distribution of the product. It is not enough to make sure consumers have heard and knew about the product; Ford Motors must also ensure that the consumers can get access to Ford Motors. All channels of distribution should be exhaustively explored to make sure that the company’s potential customers can get the product whenever they need or want it (Lamb et al 2008). The adjustments that Ford has made for this include signing up additional 1000 dealers by the year 2000 to supplement their existing 286 Autorama dealers. Moreover, Ford enticed one of the Nissan dealers to offer Ford products to its dealerships

The market strategy recommendations I would make to Ford to help it be successful include the following:
1. Partner with allies in the same or different industries to push their marketing campaigns
2. Embracecontentd generated from the users of their products. This can be done by the consumers sharing their personal stories, exchanging idea,s or even surveys
3. Ford can also collaborate with the industry influencers
4. Ford should also help its customers in solving their problems with their cars. For instance, being available and able to repair their cars when they develop problems, offering solutions, listening to the community or even partnering with local dealers to offer services to their clients
5. Experiment with other platforms and channels to promote their brand (Bennett, 1998).

References

Amir, R., Evstigneev, I. V., Hens, T., & Schenk-Hoppé, K. R. (2003). Market selection and survival of investment strategies. Louvain-la-Neuve: CORE.
Bennett, R. (1998). International marketing: Strategy, planning, market entry & implementation. London: Kogan Page.
Business Teacher, (2015). The Foreign Market Entry Modes. Businessteacher.org.uk.
Cahill, D. J. (2006). Lifestyle market segmentation. New York: Haworth Press.
East, R., Vanhuele, M., & Wright, M. (2013). Consumer behavior: Applications in marketing. Los Angeles (Calif.: Sage.
Economics Online,. (2015). Perfect competition. Economicsonline.co.uk.
Hsu, G. (2010). Categories in markets: Origins and evolution. Bingley: Emerald.
Kogan, L., & National Bureau of Economic Research. (2009). Market selection. Cambridge, Mass: National Bureau of Economic Research.
Lamb, C, Hair, J, and McDaniel, C. 2008. Marketing. Cengage Learning
Learn Marketing,. (2015). International Marketing: Market Entry Methods. Learnmarketing.net. Retrieved 3 July 2015, from http://www.learnmarketing.net/international%20marketing%20entry.htm
Lodato, 2008. Management of New Product Launches and Other Marketing Projects. Author House
Lymbersky, C. (2010). Market entry strategies: Text, Cases, and readings in market entry management. Hamburg: Management Laboratory Press.
Lynn, M. (2011). Segmenting and Targeting your market: Strategies and Limitations. The Scholarly Commons: Cornel University.
O’Dell, S. M., & Pajunen, J. (1997). The butterfly customer: Capturing the loyalty of today’s elusive consumer. Toronto: J. Wiley & Sons Canada.
Schütte, H., & Ciarlante, D. (1998). Consumer behavior in Asia. Basingstoke: Macmillan Business.
Szmigin, I., & Piacentini, M. (2015). Consumer behavior. Oxford: Oxford University Press.
Takeuchi, H., Osono, E., & Shimizu, N. (2008).The contradictions that drive Toyota’s success. Harvard Business Review.
Velayudhan, S. K. (2007). Rural marketing: Targeting non-urban consumers. Los Angeles [Calif.: Response Books.
Wedel, M., & Kamakura, W. A. (2000). Market segmentation: Conceptual and methodological foundations. Boston, Mass. [u.a.: Kluwer Acad. Publ.

Herman Bailey

With a student-centered approach, I create engaging and informative blog posts that tackle relevant topics for students. My content aims to equip students with the knowledge and tools they need to succeed academically and beyond.