Intellectual Property Overview
Patents
Patents are concerned with the technical and functional aspects of products and processes. In general Patents last for a maximum period of 20 years from the date the application for the Patent was filed.
They provide the owner with a monopoly right to the exclusive use of an invention. When a Patent is granted the invention becomes the property of the Inventor, which like any other form of property can be brought, sold, rented or hired. Patents are granted on a national or regional basis through international treaties.
It should be noted that there is no such thing as a worldwide patent, global protection is created by filing a bundle of national and regional patents. The laws in each country or region are then applied to the application process and the interpretation of any subsequent disputes. For example, the USA has a different system for patent filing, being first to invent, whereas much of the rest of the world operates a first to file system. Additionally, the US Patent office requires the applicant to disclose the prior art position, whereas in other jusrisdictions, this is in the exclusive domain of the patent office. That is why it is possible for a patent valid in the USA to be invalid in Canada, or vice versa!
Registered Designs
Designs relate to the visual appearance or aesthetic appeal of Products. There are four main features of a design; shape, configuration, pattern and ornament. A registered design gives the owner the monopoly right to utilise that design and the right to take action against any person who makes, sells, imports or hires any product bearing the registered design without his permission.
Unregistered designs attract rights in a similar manner to copyright (see below), but this varies greatly by jurisdiction.
Trade Marks
Trade marks are signs, which distinguish the goods and services of one trader from another. They can be registered ® or unregistered. A Trade Mark is registered for an initial period of 10 years and can be renewed continuously every 10 years. The majority of Trade Marks are words or logos or a combination of the two. A Trade Mark may exist for goods and for services.
Trade Marks are granted on a National or Regional basis through international treaties. A registered Trade Mark gives the owner the exclusive right to use that Trade Mark and infringement proceedings can be brought against infringers. In the USA, the type of protection varies between those providing services or products. Providers of services may file a Service Mark instead of a Trade Mark as a trade mark is linked to a product. This does not necessarily apply in other parts of the world.
Copyright
Copyright is an umbrella name that gives rights to the creators of original literacy, dramatic, musical and artistic works, films, broadcasts and computer programmes.
Copyright starts from the moment the original work is created and the duration of protection varies between the constituent forms of copyright as well as Countries. For example, Literary, dramatic, musical and artistic works last for 70 years from the end of the calendar year during which the author dies. However, computer generated works last for 50 years. Sound recordings, broadcasts and cable programs last 50 years, but films now have 70 years. Typographical rights only 25 years.
Copyright in the USA is valid for 50 years only, at variance with the rest of the world.
Copyright is usually signified by the symbol ©.
Domain Names
This is a relatively new area of Intellectual Property Right. Strictly speaking Domain Names are contractual rights, but they inextricably linked to Trade Marks and Brand names.
A domain name is the address/name used on the Internet. At present domain names are registered with a domain registry but these registries do not conduct checks to see if the person applying for the domain name is entitled to it. A number of third Parties have registered domain names which incorporate another party's trademark (a practice known as cybersquatting) and this has led to a number of legal battles between the parties over who has the right to the name.
Database Rights
Database rights are not recognised in all jurisdictions. In the United Kingdom provision is made for them in the Copyright and Rights in Databases Regulations 1997. This right was developed to provide protection for databases that were not eligible for copyright protection.
A database right belongs to the creator(s) of the database. The maker of the database is the person who takes the initiative in obtaining, verifying or presenting the contents of the database. The duration of a database right is fifteen years from the end of the calendar year during which it was completed or made public, which ever is the sooner. Computer generated databases are not protectable as a database right, but may have protection under copyright.
Importantly, if it is not possible to identify the creator(s) of the database or it is reasonable to assume that the right has expired, then there will be no infringement of the database right.
Trade Secrets
Trade Secrets are essentially information owned by a company or other entity that provide them with a competitive advantage, providing that the owner has taken reasonable measures to keep the information secret and that it is not information that is readily ascertainable by the public. Additionally, the information must derive its own economic value from not being generally known to the public.
The type of information considered as "trade secret" includes:
all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialised physically, electronically, graphically, photographically, or in writing.
