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Intellectual Property
Intellectual PropertyIntellectual property is more important now than ever. But what is intellectual property? Intellectual property ( or industrial property as it is sometimes called ) consists of a group of different types of intellectual property such as1. trade marks; 2. copyright; 3. patents; 4. industrial designs; 5. trade secrets 6. Integrated topography circuits 7 Plant Breeders' Rights 8 domain names 9. Corporate names, Partnership names, Business Names, Sole Proprietorship In order to receive legal protection a work must fall within one or more of these types although a work may fall within more than one type of protection. Consider each type separately: 1. Trade Marks: are words, designs or symbols (or a combination thereof) or a distinguishing guise (which identifies the shaping of wares or their containers, or is a mode of wrapping or packaging wares) , used to distinguish the wares or services of one person or organization from those of others in the market place. Famous trade marks are brand names of major corporations. There are two types of trade marks - unregistered but used marks (or the common law marks - named after the legal system which declares them) and registered trade marks - those granted by the Canadian Government, Trade Mark Office pursuant to the Trade Marks Act. A trade-mark registration gives the registered owner the exclusive right to use the mark across Canada for 15 years and it is renewable every 15 years thereafter. Registration provides the registered owner with prima facie evidence of its ownership and in a legal dispute, the registered owner does not have to prove ownership; the onus is on the opponent. Case laws shows that use of an unregistered mark can lead to lengthy, expensive legal disputes over who has the right to use the mark. To obtain a registered trade mark, one follows the following steps: 1. One registers a trade mark by filing a trade mark application with the government and pays the government fee currently set at $250. It is recommended that the application be filed by a trade mark agent; otherwise the application could be successfully challenged by trade mark owners who consider the mark to be confusing with theirs. 2. The Trade Mark Examiner examines the mark to see if it confirms to the Trade Marks Act and regulations and will issue an office action outlining any objects such as the mark is confusing with an existing trade mark. The trade mark applicant must response to any office action before the mark will proceed to the next step: 3. Advertisement in the Trade Marks Journal so that industry and the public is made aware of the proposed trade mark. This allows others to file an opposition if they object to the mark in which case the mark will proceed to an opposition hearing and there could be appeals in the court. Once this proceed has been completed, then the final step is done which is: 4. The trade mark is issued upon payment of the government fee of $200. It normally takes about 15 months to obtain a trade mark certificate assuming no opposition nor major difficulties and once obtained it gives the holder of the certificate the exclusive right to use the mark in association with the goods and services within Canada. Trade mark certificates are very valuable today not only for their use in association with goods and services but also due to the high weight they are given when considering disputes over domain names. Therefore, it is recommended that domain name holders apply for trade marks for their domain names in relevant jurisdictions. 2. Copyright: Copyright rights and privileges are defined by the Copyright Act which gives to the creator of a artistic, dramatic, musical or literary works (including computer programs), performance, sound recording and communication signal the exclusive right to copy or perform the work for its life plus fifty years. Copyright protection protects computer programs, data, files, photos, movies and derivatives thereof and hence is extremely important in multimedia and the Internet. In Canada, no registration is necessary to obtain copyright - it is created as soon as the work is created. However, it is a good idea to file at the Canadian Intellectual Property Office for a copyright by completing the necessary form with the title of the work (but not a copy of the work) together with the required fee which is currently set at $65. 3. Patent:Patents are new non-obvious inventions (process or method, machine, manufacture, composition of matter), or any new and useful improvement of an existing invention Patent rights and privileges are defined by the Patent Act. Patents must be non- obvious to one who is skilled in the field and give the applicant the exclusive rights for a period of twenty years in Canada. Patents give the inventor the exclusive right to use the invention in Canada for a period of 20 years from the date of filing the patent. A patent is obtained by filing an application with the Patent Office of the Canadian Intellectual Property Office. The process is fairly complex task, an agent is recommended and legal fees are usually over $15,000 CDN.. A patent consists of the disclosure which describes the invention and claims which define what patent is claiming is its invention. A great deal of controversy has arisen recently over patents that deal with life forms and business process. 4. Industrial Designs: are the visual features of shape, configuration, pattern or ornament (or any combination of these features), applied to a finished article of manufacture such as a chair. Industrial designs are defined by the Industrial Design Act and give the owner of the design the exclusive right to use the design in Canada for 10 years. An industrial design must be unique ie. new and capable of industrial exploitation. An industrial design is obtained by filing an application with the Canadian Intellectual Property Office and hiring a lawyer is recommended due to the complexity of the process. 5. Trade Secrets: Trade secrets are data and information such as customer lists, methods that an organization keeps secret from other organizations. Trade secrets are a creation of the common law or court made law. Organizations protect there trade secrets through proper security measures and contractually through appropriate trade secret and confidential information clauses in contracts and through appropriate legal action to enforce these rights. 6. Integrated topography circuits are the three-dimensional configuration of the electronic circuits embodied in integrated circuit products or layout designs The Integrated Topography Circuits Act gives the designer of original integrated circuit products or layout designs protection. 7. Plant Breeders' Rights: gives the applicant exclusive rights in Canada to new varieties of some plant species. Upon a claim being granted, the applicant is entitled to control the multiplication and sale of the seeds for up to 18 years; however others are allowed to breed or save and grow the varieties for their own private use. In order to be protected the varieties must be new, unique, uniform and stable. The process to obtain these rights is that you submit a description in the Plant Varieties Journal. Others have six months to object to the applicant's claim. This type of intellectual property is governed by the Plant Breeders' Rights Office Act and the Plant Breeders' Rights Office which is part of the Canadian Food Inspection Agency. 8. Domain Names: A domain name such as www.law4it.com allows a user on the Internet to specify the web page which is located at a specific IP address by entering the easier to use domain name. Domain names are available by applying online. As the Internet matured, these became valuable intellectual property as organizations fight over short and catchy domain names that were appealing and easy for users to remember. Trade mark holders often sought to protect their trade mark by demanding that domain names that might be confused with their trade mark by users be turned over to them. Some people were registering domain names hoping to obtain large sums of cash to turn them over to large corporations with similar names. There is a great deal of litigation over who has the right to domain names and the effect of a trade mark on domain names. 9. Trade Names: Corporate names, Partnership names, Business Names, Sole Proprietorship: These names are obtained by applying at either the federal or provincial level in Canada for the respective type of business by filing the appropriate form, paying the required fee and following the required rules. People often confuse incorporating a company or registering a sole proprietorship with trade marks. Upon being asked if they have protected their trade mark, they will respond that yes they have protected it; however, these types of registration only provide very limited trade mark protection and they could be forced to stop using their business name as a trade mark if found confusing with a trade mark. A trade name is the name under which you conduct your business, whether it be your own name, or the name of a sole proprietorship, corporation or a partnership or a name of a division of a company. A trade name can be registered as a trade mark under the Trade Marks Act if it is used as a trade mark in association with goods or services. If a trade name is used as a trade mark ie. used to identify goods or services, it is highly recommended that appropriate trade marks be applied for. They are many cases were business owners have relied upon their trade name only to be forced to change their trade name when a competing company obtained a registered trade mark Concluding Remarks: Intellectual Property consists of different types of intellectual property as indicated above. Care must be taken by business not to infringe the intellectual property of others especially those with deep pockets. Also, it would prudent for business owners to do an intellectual property audit of their business to do an inventory of its intellectual property and to protect it. Domain name holders should seek advise about obtaining trade marks for their domain names to protect against an attach by other trade mark holders. Members of LAW FOR INFORMATION TECHNOLOGY have extensive experience in computer science, project management and systems and hence understand your business. LAW4IT.COM applies this experience to assist you in meeting your goals and solving and preventing problems. We are a law firm which practice concentrates on computer, Internet, entertainment, business, intellectual property, privacy law and related matters. We register and prosecute Canadian and American Trade Marks. LAW4IT.COM provides services in the following major areas:
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