All computer programmers, engineers, photographers, architects and artists invest considerable amount of time, effort and possibly money in the creation of their works, be it a picture or software code. It is thus understandable that they would seek to secure this investment by ensuring adequate protection for their final works.
There again, significant profits can be made by securing the more important and expensive creations. Looking at the pharmaceutical or industry for example, patenting of new drugs gives security to the company in the knowledge that their investment in the creation of new drugs cannot be stolen.
The same applies in the technological industry where, for example, the patent disputes between Samsung and Apple over smart technology have stretched across numerous jurisdictions, from North America to Asia.
Proper intellectual property registrations must be done, at the right place, at the right time.
While forms of intellectual property rights differ in form, their core purpose remains the same: the protection of the rights of the creator, to prevent others from copying the creation or using such a creation for their own benefit to the prejudice of the creator. However, it is essential to understand the fundamental difference between the types of intellectual property rights.
There are five primary intellectual property rights:
Trademarks: These are essentially marks, logos or brand names which identify a particular person, entity or even a product or product range. Trademarks may consist of shapes, pictures, colors, names, words, numbers or symbols so long as the final mark is identifiable and distinguishable.
Trademarks are important since they identify products and services of a seller in the market and guide consumers to the seller simply through the brand name and reputation of the seller. Trademarks are normally registered to obtain formal recognition although some jurisdictions provide a limited form of protection to unregistered trademarks through prior use.
Copyright: Copyright is a right granted to the creator of a work, upon inception, so long as such a creation is fixed on a tangible medium and is deemed to be an original work.
Copyrightable works include paintings, photographs, software code, books, articles and other similar works. In some jurisdictions, more exotic works where deemed to be copyrightable like the smell of a perfume. In principle, copyright is granted on the creation of the work. However, some jurisdictions provide for optional additional registrations as well.
Patents: Patent protection is granted to inventions should the invention satisfy the general requirements of patentability which generally involve that the creation is novel, non-obvious and which is useful or which have an industrial application. Patentable objects vary depending on jurisdictions and thus what is patentable in the United States is not necessarily patentable in the European Union. While this is true for most intellectual property types, such distinction is more evident in patent registrations.
Industrial designs: In essence, designs are ascetic aspects of an object or a thing, in either two dimensional or three dimensional format, and would include its shape, lines, patterns, contours, material and the colour of the item. Design protection can be granted to a number of different products varying from electronic devices, to containers and jewelry. However, for a design to be registerable, the design would need to be, in essence, new. Protection to industrial designs is granted in most countries, upon registration and in some cases, the protection granted might also overlap over copyright protection.
Trade secrets: These consist of commercially sensitive information, usually a process, a method, practice or formula which are not known to the public. Such information is valuable to the owners of such information. However, should this information not fall under other protectable intellectual property, no official legal protection can be granted and the owner of the information must therefore keep such information confidential to ensure its protection.
Why register your intellectual property rights?
As a general principle, intellectual property right protection grants the holder of the exclusive protection of the creation so that, third parties cannot use the creation without the permission of the creator, which is usually granted through a licence against the payment of a fee in the form of royalties, with the creator keeping exclusive rights over the creation.
Registration is usually made in the jurisdictions where the creation would be mostly used. However, it is a common practice that while the registration is made in the jurisdictions of use, the holder of the right would be an entity in other jurisdictions – for numerous reasons, usually for logistical, asset protection and tax reasons. This means that in the event that a group of companies have numerous registrations in intellectual property rights, such assets would be separated from other group assets through a separate legal person and also so that all royalty fees as centered into one tax efficient structure.
jcachia@ksimalta.com
Josef Cachia is the legal adviser of KSi Malta.