IP Glossary

The term intellectual property (IP) or IP rights refers to the protection of ideas and creations of the mind: inventions, literary and artistic works, symbols, names, images, and designs used in commerce. Intellectual property denotes the specific legal rights or exclusive rights, which authors, inventors and other IP holders may hold and exercise, and not the intellectual work itself. IP rights may be protected by law in the same way as any other form of property and can generally be transferred, licensed, or mortgaged to third parties.

1. Types of Intellectual Property 


1.1.            Copyright and Related Rights


1.2.            Industrial Property Rights

a.           Trademarks

b.           Patents

c.           Industrial Designs

d.           Geographical Indications


1.3             Other Intellectual Property Rights


2.  Scope of protection


Intellectual property laws, regulations and requirements vary from one jurisdiction to another, such that the acquisition, registration, or enforcement of IP rights is pursued separately in each jurisdiction of interest. Nevertheless, there have been many international IP protection treaties introducing new more harmonious international laws (such as the Paris Convention, the Patent Law Treaty, and the Nice Classification Agreement) and facilitating the filing, registration or enforcement of IP rights in more than one jurisdiction (such as the Madrid Agreement for trademarks, the Hague Agreement for designs, and the Patent Cooperation Treaty). Different intellectual property laws are designed to protect different forms of intangible subject matter.

Although IP rights may be sought separately in each jurisdiction, regionally, or globally through the special systems mentioned above, it is currently not possible to file and obtain a single registration which will automatically apply around the world as the effect of these systems only influences signatory countries.

Also, some countries do not allow the registration of certain types of non-conventional industrial property rights. For example, series marks and patents of importation may not be registered in a certain country, even though trademarks and patents may be registered in this country.

It should also be noted that more than one type of IP right may provide protection to the same article. For example, a particular design of a bottle may qualify for copyright protection as a sculpture or for trademark protection if it is used to identify the goods or services of a company. The appearance of the bottle is also protectable as a trade dress. Titles and character names from books or movies may also be protectable as trademarks while the works from which they are drawn may qualify for copyright protection as a whole. Choosing the right type of protection depends on the benefits and protection required, keeping in mind that patents and copyrights eventually expire into the public domain but trademarks do not. 

3. Licensing of IP rights


The holder of an intellectual property right may license the use of his right, for a return (through the payment of royalties), allowing the licensee to copy software, use a trademark or character in production or trade, or use a patented invention without fear of a claim of intellectual property infringement brought by the licensor (the owner).

A license under intellectual property is limited to a specific jurisdiction and valid for a particular period of time in order to protect the licensor should the value of the license increase, or market conditions change.

Compulsory Licensing

In a compulsory license, the government forces the holder of a patent, copyright, or other IP right to grant use to the state or others. The holder usually receives royalties under a compulsory license.

A compulsory copyright license is an exception to copyright law. It is usually used as an attempt by the government to correct a market failure. Compulsory licenses may also be established as purchase methods or strong market influences in the entertainment industry, such as playing popular music on a radio station or using broadcasted audiovisual works such as television shows in cable television systems.

As for patents, compulsory licenses may be issued in specific situations, after meeting certain requirements, which may be waived in cases of national emergency or extreme urgency. The principal requirement for the issue of a compulsory license is that all attempts to obtain a license under reasonable commercial terms have failed over a reasonable period of time. Specific situations in which compulsory licenses may be issued are set out in the legislation of each patent system and vary between systems. Some examples of situations in which a compulsory license may be granted include lack of working over an extended period in the jurisdiction of the patent, inventions funded by the government, failure or inability of a patentee to meet a demand for a patented product and where the refusal to grant a license leads to the inability to exploit an important technological advance, or to exploit a further patent. For example, drug companies estimate future demand for their patented drugs and vaccines, and produce accordingly. However, the number of victims in a flu pandemic (such as bird flu) or anthrax attack could exceed any reasonable prediction, and for the original maker to increase production could itself be a lengthy process. The issue of compulsory licenses allows the number of manufacturers to be increased, thereby allowing greater volumes of supplies to be manufactured. 

4. IP right Enforcement

IP rights are enforced by courts of law. An IP right holder may send a cease-and-desist letter to the infringers requesting that they stop use of his IP right. In case an amicable agreement is not reached, the IP right owner will file a court case. Civil remedies and criminal sanctions apply against acts of piracy and infringement, namely the award of damages to the IP owner, destruction of fake goods, packages, copies and sometimes even equipments serving to manufacture the same. Pirates or infringers are also punished by means of penalties and imprisonment.

The extent, however, to which a trademark owner may prevent unauthorized use of trademarks which are the same as or similar to its trademark depends on various factors such as whether its trademark is registered, the similarity of the trademarks involved, the similarity of the products and services involved, and whether the owner's trademark is well known.

If a trademark has not been registered, some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill or for long use of the mark. Unregistered marks may be enforced by way of a lawsuit for passing off (the misrepresentation of one's reputation and goodwill damage). Passing off may provide a remedy in a scenario where a business has been trading under an unregistered trademark for many years, and a rival business starts using the same or a similar mark.

If a trademark has been registered, then it is much easier for the trademark owner to demonstrate its trademark rights and to enforce these rights through an infringement action. Unauthorized use of a registered trademark need not be intentional (in bad faith) in order for infringement to occur, although damages in an infringement lawsuit will generally be greater if there was an intention to deceive.

For trademarks which are considered to be well known, infringing use may occur when the mark is used for goods or services which are not the same as or similar to the goods or services in relation to which the owner's mark is registered

5. Sources

1. What is Intellectual Property (http://www.wipo.int/about-ip/en/index.html)

2. Trademark FAQs (www.inta.org)

3. Trademarks (http://www.itma.org.uk/trade-marks/index.html)

4. Information about IP (http://www.cipa.org.uk/pages/Information_About_IP)

5. United States Patent and Trademark Office (http://www.uspto.gov/)

6. Information about industrial design rights (www.ipo.gov.uk)

7. What is Copyright? (www.ipo.gov.uk/whatis/whatis-copy.html)

8. What is Intellectual Property? (www.ipaustralia.gov.au/ip/copyright.shtml)