Intellectual property, Industrial property and trade mark Fiche ARTCADEMY

Intellectual property, Industrial property and trade mark

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Título: Intellectual property, Industrial property and trade mark

Palabras clave: Trade mark, patent, intellectual property (IP), protection, copyright, Designs, Geographical Indications.

Autor: AE

Idiomas: English

Contenidos

• Intellectual Property. Intellectual property is the exclusive rights over intellectual creations. It is broken down into two parts: industrial property, including inventions (patents), trade marks, drawings and industrial designs and geographical indications; and copyrights that involve literary and artistic creations. The European Union has carried out an active policy to harmonise legislation on this topic in all member states. TheTreaty on the Functioning of the European Union, which entered in force in 2009, provides explicit competence to the European Union over Intellectual Property rights.
• Intellectual Property rights are still protected mainly by national legislation. However, if you need to protect them in each of the member states can be complex and expensive, and therefore in order to save time and money you can use intellectual protection at European level.
• If you are thinking of doing business with more than an EU country, the European Union trade mark, drawing or community model provide protection in 28 member states with only one registration. You can register your trade mark, drawing or design in any of the 23 European Union languages by submitting only one application to the European Union Intellectual Property Office (EUIPO).
• Intellectual Property can be protected by Intellectual Property Rights (IPR) established by the World Intellectual Property Organisation (WIPO). The protection of these rights depends on the type of Intellectual Property we are dealing with. Let’s take a glance to the alternatives:
• Patents prevent third parties to manufacture, use or sell anybody’s invention during a certain period of time, depending on the type of invention. In the framework of the European Patents Convention, patents are awarded to those inventions that are new and can be industrially applied. To this end, it is a requirement that these inventions were not known before and that they can be manufactured or use in industrial processes.
For national patents you can apply to your national patent office, whereas the European Patent must be processed by the European Patent Office (EPO). However, European Patents must be validated in each country where you are seeking protection. Depending on national legislation, you as business promoter might be obliged to provide with translations and / or paying fees in specific countries.
Currently, efforts are being made to implementing a unitary patent protection European wide. This will enable inventors to protect their inventions in the European Union by submitting a single patent application, thus, there will be no need to validate that patent in each individual member state.
• Trade marks protect product names as they prevent other businesses from selling products with the same name. Trade marks are signs used in trade to identify products. In relation to Intellectual Property, trade marks are a small element but very useful. Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark offers the following definition for a trade mark:
An EU trade mark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of:
o distinguishing the goods or services of one undertaking from those of other undertakings; and
o being represented on the Register of European Union trade marks in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor.
• In practice, it means your trade mark is the symbol your customers use to pick you out. It is also convenient to differentiate you from your competitors. In some countries, you can also get protection even if your trade mark is not registered, as long as it is used. However, you are well advised to register it in order to obtain the best protection. The only condition imposed on a registered trade mark is that it must be clearly defined; otherwise neither you nor your competitors will be certain of what it covers.
• Copyright informs others that you (as the author) intend to control the production, distribution, display or performance of your work. Copyright is granted automatically, with no need for formal registration. You can start using the copyright symbol immediately. Nevertheless, in most countries there is a register system and optional deposit for your works. These systems in place facilitate, for instance, clarifications on controversies related to ownership, creation, financial transactions, selling and right transfers.
• In legal terms, Copyright, or author’s right, describes the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.
• Exhaustive lists of works covered by copyright are usually not to be found in legislation. Nonetheless, broadly speaking, works commonly protected by copyright throughout the world include:
o literary works such as novels, poems, plays, reference works, newspaper articles;
o computer programs, databases;
o films, musical compositions, and choreography;
o artistic works such as paintings, drawings, photographs, and sculpture;
o architecture; and
o advertisements, maps, and technical drawings
Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such. Copyright may or may not be available for a number of objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.
Currently, as part of the Single Digital Market, the European Union aims to improve the framework for European Copyright, boosting therefore, the provision of digital content. This is paramount for creative and cultural industries as they will have an easier access to cross-border internal markets within the EU. Please, have a look to the training fiche on Single Digital Market and ecommerce.
• Design. In business, design is crucial for success. Great design focuses on the user, combines aesthetic, economic and practical values and is the way your customers identify innovative brilliance. In Europe, there is a recognised need to encourage European designers and European businesses to develop their design strategies. A design is a practical way to define and protect your innovation. It is indeed, a company asset that can be traded or used as collateral, that rewards your creative effort, that acts as your IP signature.
• Designs are well defined in the European Union: «The appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation » (Article 3 of the Design Regulation). Almost any industrial or handicraft item can be eligible for design protection (except for computer programs).
(https://euipo.europa.eu/ohimportal/en/web/guest/design-definition)
• Geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. (Art. 22.1 from TRIPS) Traditionally, Geographical Indication is being used for agricultural products. However, in 2014, a public consultation by the EU was launched to extend this type of protection to non-agricultural products, such as handcrafts. There has already been a report on this issue by the European Parliament in 2015 and its endorsement is expected shortly.

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Resultados

At the end of this training fiche you should have basic information about the types of protection your product or service can enjoy, not only in your country, but also at European level. On top, you should be able to identify which are the institutions you have to address to apply this protection.

Likewise, the information on this training fiche should help you to reflect upon the relevance of protecting your products or services and how it can influence your business model and the strategic decisions that you might adopt in the development of your business plan.

Indicadores

Intellectual Property, business model and business plan

: As we stressed in the training fiche on the relevance of defining your business model, if you produce products or services in your business that can be protected, it is key that this element be part of both, your model and business plan. In this way you can use it as a resource or opportunity when facing potential investors.

Applying for European trade mark protection

: In this section we will deal with EU trade mark application as it is European wide:

There are two different ways to apply for a European trade mark, through the European Union Intellectual Property Office (EUIPO,

https://euipo.europa.eu/ohimportal/es/route-to-registration

) or through each member state trade mark and patent offices. In the latter, a reception and transfer fee might be applied.

At the EUIPO site, it can be found a fast track process for your application with the following steps:

Trade mark details (languages and types).

You must specify the products or services your trade mark is going to cover.

At this point, the site automatically searches for similar trade marks that might compete with yours. Depending on the search result you either move to the next step or go back to specify again your product or services.

Create your user account that will enable you to manage your trade mark with more advantages and additional functions.

Once your user account is created, the funny part comes along: You need to confirm and make an upfront payment. In summer 2016 the fee was 850 €.

Applying for European design protection

: It is the same fast track process like trade mark. The steps set in the EUIPO website are as follows

Design details (languages and design). You can add several designs to your application and they must be uploaded to the site. Should you need to upload images, instructions must be followed.

Once it is uploaded, you will have to provide indications on your design or alternatively, refer to an international classification called Locarno. You must describe your design on a simple way and provide details about the designer.

At this point, the portal makes an automatic search through Design View database to check out for similar designs.

Like in the trade mark process explained above, a user account must be created that will enable you to manage all aspects concerning your application.

Now, it is payment time. Up to summer 2016, the fee was a total of 350 €.

Managing your trade mark or design:

This is another important indicator on your IP management. In relation to European design the protection period lasts 5 years, though it can be renewed four times. Speaking of trade marks, the protection lasts 10 years, but can be renewed indefinitely. At the end of that period you can either renew, convert or abandon it.

Contact Points:

As we are not expert in all subjects, it is convenient to know your national contact points should you need to go in depth in any aspect of this training fiche. Follow the links bellow to access information about national IP offices contact details in Europe and all around the world:

http://www.wipo.int/directory/en/urls.jsp

http://www.innovaccess.eu/

In relation to Geographical Indications, we advice you to search in your region or your area to check if there is any GI you can adhere to depending on your products. Take a look to associations in your sector, as they normally are key stakeholders in this process.

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