04 July 2013
A Basic Introduction to ‘What is Intellectual Property and why protect it?’
In the context of the World Intellectual Property Day 2013, Juristconsult Chambers is keen to create a better understanding of the concept of Intellectual Property in the Mauritian Society.
The formal definition, according to the World Intellectual Property Organization, of Intellectual Property is ‘creations of the mind — inventions, literary and artistic works, symbols, names, images, and designs used in commerce’. Intellectual Property includes but is not limited to ideas, inventions (products and processes) and industrial designs, as well as literary and artistic works such as novels, films, music, architectural designs and web pages.
The four legally-defined categories of intellectual property are:
1. Patent: A Patent is a grant that gives an inventor exclusive rights to his invention. A patent protects new inventions and covers how things work, what they do, how they do it, what they are made of and how they are made. Generally, an “invention” is described as a solution to a technical problem in any field of technology. They can also be registered in foreign countries. Once you hold a patent, others can apply to license your product. Patents can last for 20 years.
2. Trademarks A trademark is a name, phrase, sound or symbol used in association with services or products. It often connects a brand with a level of quality on which companies build a reputation. A trademark registration effectively marks the territory and gives the company room to enforce its rights if other companies attempt to use the same symbol for their own purposes.
3. Copyrights Copyright laws protect written or artistic expressions fixed in a tangible medium – novels, poems, songs or movies. Copyright protects the expression of an idea, but not the idea itself. The owner of a copyrighted work has the right to reproduce it, to make derivative works from it (such as a movie based on a book), or to sell, perform or display the work to the public.
4. Trade secrets A formula, pattern, device or compilation of data that grants the user an advantage over competitors is a trade secret. To protect the trade secret, a business must prove that it adds value to the company – which is, in fact, a secret – and that appropriate measures have been taken within the company to safeguard the secret, such as restricting knowledge to a select handful of executives. Coca-Cola, for example, has managed to keep its formula under wraps for more than 117 years.
Protecting intellectual property under its various forms is crucial to the success of many businesses. If a business has developed a new and better product or process that is unique, useful, and non-obvious, protection of such an invention or patent will ensure the competitive advantage over other businesses. The holder of a patent can stop third parties from making, using or selling his invention for a period of years depending on the local legislation. Copyrights ensure the exercise of control over the production, distribution, display, and or performance of the work of an author. Registration of trademarks seeks to protect consumers from confusion or deception by preventing other businesses from using the same or a confusingly similar name for their products. Being the first to use the mark is important to protect the continuing right to use the name, but filing is important for enforcement purposes.