Intellectual Property

What is Intellectual Property?

Sometimes referred to as industrial property, Intellectual Property means a concrete representation of intellect and creativity. According to the World Intellectual Property Organization (WIPO), Intellectual Property can be broken down into two categories:

  • Industrial Property - this includes patents, industrial designs, trade marks, and geographical indications of source
  • Copyright - this includes literary works such as novels, poems and plays, films, musical works; and artistic work such as drawings, paintings, photographs and sculptures; and architectural designs.

The owners of the inventions, literary and artistic creations are given exclusive rights through patents, copyrights, trade secrets and trade marks.

 

Strength of Protection

Millions of dollars invested in research and development can be lost overnight if a company fails to identify its Intellectual Property Rights under the IPR laws and provide for sufficient protection. Every country has its own system for guarding IPR utilised by all corporations, big or small, to protect their investments in innovation against competitors.  IPR protection is generally three-fold and can be found under federal law, in common law and in equity. For example, registered trade marks are protected under the Trade Marks federal laws while unregistered trade marks may be protected under common law.  IPR is also territorial by nature in that the owner of the IPR must obtain property rights protection on a country-by-country basis. 

Besides federal protection, there is also governance of international protection.  Established in 1970, the Geneva-based World Intellectual Property Organization (WIPO) is an intergovernmental organisation, responsible for promoting Intellectual Property protection throughout the world.  Another key player is the World Trade Organization (WTO), a global multi-lateral trade organisation with 134 members, which acts as a moderator for world trade with respect to goods, services, and IPR.

A total of 24 international Treaties, Conventions, and Agreements govern the international field of Intellectual Property.  The following constitute the main ones:

  • Paris Convention for the Protection of Industrial Property
  • Berne Convention for the Protection of Literary and Artistic Works
  • WIPO Copyright Treaty
  • Patent Cooperation Treaty which simplifies the filing procedures for protection of an invention in a number of countries simultaneously
  • Madrid Agreement concerning the International Registration of Marks and the Protocol Relating to the Madrid Agreement
  • Hague Agreement concerning the International Deposits of Industrial Designs
  • Trade Mark Law Treaty
  • Patent Law Treaty
  • Conventions on Classification
  • International Convention for the Protection of New Varieties of Plants
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and WIPO-WTO Cooperation
  • Progressive Development of International Intellectual Property Law

Some of these spell out the international basic standards of IPR protection in each Member State.  For example the Paris Convention and the Berne Convention ensure multi-lateral IPR protection where each of the 181 Member State guarantees to the nationals of the other Member States, the same rights in patent and trademark matters as it would bestow upon its own nationals.  The World Trade Organization TRIPs Agreement obligates Member States to pass laws governing IPR so as to conform to a set of minimum IPR standards and further sets out a schedule for use of WTO Member States in reconciling their diverse Intellectual Property protection systems. 

Developments in IPR protection have made it possible to seek patent protection for an invention concurrently in any one Member State by filing an ‘international’ patent application.  This means that those who wish to obtain patent, trade mark, and industrial design protection in more than one country are given mutual recognition by virtue of ‘priority date’ which is the date of first filing of an application for a particular invention. 

Nationals or residents of Member States party to the following may file international applications with the corresponding listed offices:

  • European Patent Convention – the European Patent Office
  • Harare Protocol on Patents and Industrial Designs (Harare Protocol) – the African Regional Industrial Property Organization (ARIPO)
  • Eurasian Patent Convention – the Eurasian Patent Office (EAPO)

To file an application for the protection of one’s IPR, a national or resident of a Member State may approach its own national patent office or alternatively proceed directly to the International Bureau of WIPO in Geneva.

Although the field of international IPR protection has greatly advanced, seeking international Intellectual Property protection in another country is still not a simple process.  The applications are generally required to be made in the national language of the respective Member State and as the translation of applications into other languages can be a costly process, research of the intended overseas markets is advisable.

Remedies Available

The most common remedies in IPR infringement actions are injunctions, damages, or account of profits as an alternative to damages. The criminal offences of counterfeiting and piracy will invite the order of stiff penalties and seizure of all offending products by a criminal court. Other court orders include

  • the sealing of premises where the unauthorised copies are being manufactured, packaged, stored or offered for sale/rental;
  • the disclosure of the source of the copies suspected to be unauthorised copies; and
  • the termination of the manufacture or distribution of the unauthorised copies.

Importance in Business

In today’s fiercely competitive cutting-edge industries, Intellectual Property Rights (IPR) have the potential to give every company that much needed edge to stay ahead of competition. Like any other business commodity, a company can use the rights to Intellectual Property for profit by buying, selling, or licensing them in the market. Although the practice was not a norm in the past, commercial banks are now starting to accept IPR alongside money or concrete assets as means of security and for this reason IPR should never be omitted from a company’s list of assets in their balance sheets

Enforcement of Intellectual Property Rights

Filing and obtaining IPR protection is only the beginning before one is confronted with the arduous task of safeguarding the registered IPR. Even though the domestic Intellectual Property laws of most jurisdictions provide for the granting of IPR, it is still the owner’s responsibility to be vigilant and police his own Intellectual Property and take the initiative of civil action against any infringers.  The laws of IPR do not look kindly upon one who “sleeps on his rights” and if infringement takes place over a period of years, he will lose his right to legal recourse, and equitably the infringer gains the right to use his infringing mark.  Owners should never neglect to take effective legal action against infringers to prevent further infringement and to protect their markets.  Patents, trade marks, and design infringements are decided under civil law, whereas piracy and counterfeits are dealt with by the State authorities and decided under criminal law.