• May 3, 2022
• Maichael Bessada

Intellectual property (IP)[1] rights are the rights awarded by society to individuals or organizations principally over creative works: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. They give the creator the right to prevent others from making unauthorized use of their property for a limited period. IP is categorized as Industrial Property (functional commercial innovations), and Artistic and Literary Property (cultural creations). Current technological developments are blurring, to some extent, this distinction, and some hybrid sui generis systems are emerging.

Industrial Property

Patents: A patent is an exclusive right awarded to an inventor to prevent others from making, selling, distributing, importing, or using their invention, without license or authorization, for a fixed period of time (TRIPS stipulates 20 years minimum from the filing date). In return, society requires that the patent applicant disclose the invention in a manner that enables others to put it into practice. This increases the body of knowledge available for further research.  As well as sufficient disclosure of the invention, there are three requirements (although details differ from country to country) that determine the patentability of an invention: novelty (new characteristics which are not “prior art”), non-obviousness (an inventive step not obvious to one skilled in the field), and utility (as used in the US) or industrial applicability (as used in the UK). Utility models are similar to patents, but in some countries confer rights of shorter duration to certain kinds of small or incremental innovations.

Industrial Designs:  Industrial designs protect the aesthetic aspects (shape, texture, pattern, color) of an object, rather than the technical features. TRIPS requires that an original design be eligible for protection from unauthorized use by others for a minimum of 10 years.

Trademarks:  Trademarks provide exclusive rights to use distinctive signs, such as symbols, colors, letters, shapes, or names to identify the producer of a product, and protect its associated reputation.   In order to be eligible for protection, a mark must be distinctive of the proprietor so as to identify the proprietor’s goods or services.   The main purpose of a trademark is to prevent customers from being misled or deceived.  The period of protection varies, but a trademark can be renewed indefinitely.  In addition, many countries provide protection against unfair competition, sometimes by way of preventing misrepresentations as to trade origin regardless of registration of the trademark.

Geographical Indications:  Geographical Indications (GIs) identify the specific geographical origin of a product, and the associated qualities, reputation, or other characteristics. They usually consist of the name of the place of origin. For example, food products sometimes have qualities that derive from their place of production and local environmental factors. The geographical indication prevents unauthorized parties from using a protected GI for products not from that region or from misleading the public as to the true origin of the product. 

Trade Secrets: Trade secrets consist of commercially valuable information about production methods, business plans, clientele, etc.  They are protected as long as they remain secret by laws that prevent acquisition by commercially unfair means and unauthorized disclosure.

Artistic and Literary Property

Copyright:  Copyright grants exclusive rights to the creators of original literary, scientific and artistic works.  Copyright only prevents copying, not independent derivation.  Copyright protection begins, without formalities, with the creation of the work, and lasts (as a general rule) for the life of the creator plus 50 years (70 years in the US and EU). It prevents unauthorized reproduction, public performance, recording, broadcasting, translation, or adaptation, and allows the collection of royalties for authorized use.  Computer programs are protected by copyrights, as software sources and code have been defined as literary expressions.

Sui Generis systems

Integrated Computer Circuits: A specific sui generis form of protection for the design of integrated computer circuits. As the inventive step is often minimal and originality is the only requirement, the minimum period of protection under TRIPS is 10 years.

Plant Breeders’ Rights: Plant breeders’ rights (PBRs) are granted to breeders of new, distinct, uniform, and stable plant varieties.  They normally offer protection for at least fifteen years (counted from granting).  Most countries have exceptions for farmers to save and replant seeds, and for the use of protected materials for further breeding. 

Database Protection: The EU has adopted legislation to provide sui generis protection in respect of databases, preventing unauthorized use of data compilations, even if non-original. Exclusive rights to extract or utilize all or a substantial part of the contents of the protected database are granted.

[1] – Integrating Intellectual Property Rights and Development Policy, Report of the Commission on Intellectual Property Rights – London September 2002 – Published by Commission on Intellectual Property Rights