Introduction
Intellectual property helps companies become competitive. It gives commercial entities monopoly rights over their patents or trademarks. We have already explained intangible properties and stated that such properties include copyrights and patent rights – which are part of intellectual properties. Let us now understand intellectual properties and its associated rights called intellectual property rights. Intellectual properties are the product of a mental activity, such as ideas or inventions, of which individuality or originality is a very essential feature. According to WIPO intellectual property (IP) refers to creations of the mind such as inventions, literary and artistic works; and symbols, names and images used in commerce. IP can be divided into two main categories: industrial property and copyrights.
Industrial property
Industrial property includes patents for inventions, trademarks, industrial designs and geographical indications. The main types of intellectual property are copyrights, trademarks, patents, and industrial designs. The owners of industrial property have got Industrial property rights (IPRs) in those properties. In some countries, using the law, government have tried to balance the moral rights of creators and social costs of protection to society.
Copyright
Copyright covers a range of IP: literary works (such as novels, poems, and plays), music, film, artistic works (including paintings, photographs, and sculptures) and architectural designs. This category also covers rights related to copyrights including those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs. The general rule is that copyrights lasts until the end of the calendar year in which the author dies plus 50 years after which the work protected becomes part of the public domain. Works created by a person in employment is owned by the employer unless there is an express agreement to the contrary. In some situations, usage of copyrighted works is permitted such as public readings of reasonable extracts or performance of musical works for example by religious institutions (churches, and mosques) or schools for charitable purposes.
Trademarks
A trademark is a badge of origin which is used so that customers can recognize the product of a particular company. It creates a distinction between products of one company from others. It can the several form including logos, pictures, a combination of logos and pictures, specific colours, sounds (such the lion roar of MGM), slogans (such as ‘always Coca Cola’), or smells and tastes that are sufficiently distinctive. Trademarks are protected at common law through the tort of pass off where there is a misrepresentation of goods, services, or a business so as to deceive the public into believing that they are the goods, services, or a business of another thus causing damage to those of the other person. See the Tort of Passing Off and the protection it offers the creators or inventors. Trademarks are also protected through other legislations or Acts of parliament in some countries.
How to register a trademark
To be registered, a trademark must fulfil three criteria:
- It must be distinctive for the goods or services being applied for
- It must not be deceptive or contrary to law or morality.
- It must not be similar or identical to any previous trademark for the same or similar goods or services.
Advantages of registering a trademark
- It creates the presumption that the trademark is valid and distinctive and therefore owned by the owner.
- It Secures exclusive rights to the owner to use it throughout the jurisdiction where it has been registered.
- It provides the owner the right to register the same trademark in other countries or jurisdictions.
- It provides the owner protection against other types of infringement besides those under the tort of pass off.
Patents
Patents are statutory property rights that give the owner of the patent the exclusive rights to use certain inventions. Patents are concerned with the functional and the technical aspects of products and processes.
To be patented the invention must fulfil specific conditions:
- The invention must be novel
- It must be able to be applied to industry. It can be made or used in any industry.
- It must be capable of an inventive step (something not obvious to a skilled person in that area of technology, or non-obvious)
- It must not fall within an excluded category. In treating humans and animals, surgery, therapy or diagnoses are deemed not capable of industrial application.
Who can be granted the patent rights?
Almost universally the law allows patents to be granted to the following:
- These are features of shape, configuration, pattern, or ornament applied to a finished product to improve its overall appeal.
- Protection of industrial designs can be obtained and guaranteed by registering such IP through the government office for the registration of property rights sometimes.
Remedies for infringement of IPRs
