Copyrights, Patents, and Trademarks, Oh My! How Intellectual Property Rights Vary Globally 

Copyrights, Patents, and Trademarks, Oh My! How Intellectual Property Rights Vary Globally 

Posted on June 30, 2021

Navigating through the process of registering your trademarks and confirming copyrights and patents can be a challenge, but taking those items internationally brings about a whole new set of rules, regulations, and decisions for the future of your business.

Intellectual Property (IP) rights exist to protect innovation. One of the driving forces for change in this world is the innovation of new ideas, processes, materials, and goods. Being able to protect the ideas and innovations, if only for a short period of time, allows the creator to benefit from their ideas financially. The laws give the creator ownership and control over how their creation is used, ultimately allowing them to benefit and recoup the time and investment on their creations.

As far back as 1886, in the Paris Convention for the Protection of Industrial Property, businesses were thinking about protecting intellectual property.  Today, there are more than 25 international treaties on IP, and the world is constantly changing to keep up.

Let's dive into the different types of IPs and how to protect them.

Intellectual Property

Intellection Property (IP) is defined by the World Intellectual Property Organization (WIPO) as "creations of the mind – everything from works of art to inventions, computer programs to trademarks and other commercial signs." It refers to a variety of rights by those who create works that are protected under copyright laws, patent laws, and trademark laws. Each item has different laws and regulations based on the type of item/work. We can think of IP as the umbrella over copyrighted, trademarked, and patented materials.

Typically, there are two categories when discussing IP, copyrights, and industrial property rights, including patents, industrial design, and trademarks. Below are some details about each and things to consider before taking your products or services international.

Copyright

Copyrights encompass a large body of work - from individual writings, music, movies, and one-of-a-kind works of art to databases, computer code/programming, maps, and architecture. The copyright allows control over how the distribution of work and the creator's right to be acknowledged. Transfer of copyright is quite common and happens when the original owner gives the rights to someone else to benefit or utilize while also collecting a fee for use (also known as royalties).

Internationally, many copyright laws have both criminal and civil penalties that the copyright owner regulates. Rights are often defined in two categories - economic and moral rights. Economic rights include the right to profit from one's creative project. Moral rights, including the right to be acknowledged and alterations to their work, are limited as not to cause damage to the creator.  Economic rights typically have international time limits, which after the period expires, the work enters the public domain for use. Time limits for moral rights are indefinite in some countries, both others have specific time limits.  While full international copyright does not exist, many international protections and policies are in place through government treaties and agreements.

Industrial Property Rights

Patent

Patents are typically reserved for inventions and provide the patent owner with exclusive rights to the product for a set period of time and legally allow control over who uses, sells, or makes the invention. After the exclusivity time has passed, others can utilize the design.  The key to a patent is that the protection granted is for something completely new, a new product, a new process, or a new solution. Some inventions that may not be eligible for patients include scientific or mathematical theories, flora and fauna species, and medical treatments. These non-patentable items intend to benefit humankind without formal control or restriction.

Domestically and internationally, there is an application process for patents, which varies by region and often involves a fee. It is recommended to seek local legal representation for each international patent application in each country you intend to file.  Some regional patent systems exist where one patent can cover multiple regions, such as the African Regional Intellectual Property Organization (ARIPO) or the Patent Cooperation Treaty (PCT System).

Industrial Design

A little more abstract than a patent, industrial design encompasses a product's look and feel, and is prevalent on the consumer level with a product's design or aesthetic elements and details considered "ornamental." For example, the industrial design could be a new ergonomic chair that is exclusively designed to be unique, the chair itself is just a chair, but the ornaments adorning the chair could be a discerning factor for consumer preferences. Other aspects of industrial design include two-dimensional features like lines, patterns, and colors.

Internationally, for the industrial design protection to apply, the products should show originality and be produced on a larger scale (not a one-of-a-kind piece). Laws vary widely for industrial design and should be carefully considered before beginning the process of registration.

Trademarks

Since ancient times, trademarks have been in practice when Roman brick makers would each have their own mark to signify the maker, gaining a reputation for quality, craftsmanship, or lack thereof. Today, trademarks work in much the same way - to indicate the origin of the goods or maker. There are legal protections to control the use of a specific mark to deter counterfeiters.

The trademark itself can be represented by letters, words, numbers, symbols, colors, or pictures, as well as 3-dimensional designs, packaging, and even sounds. As long as the mark is distinct and not already registered similarly, it can qualify as a trademark. Registration will often be granted for a set period of time and needs renewal. Additionally, trademark registration requires a fee and disclosure of the types of goods and services provided by the mark. Once granted, if the trademark is used fraudulently, the trademark owner has legal ground to defend their product.

Counterfeited goods are harmful to legitimate businesses, and they often support not-so-savory endeavors. They also undermine the IP of the legitimate business, which can damage their reputation and reduce their success.

The best way to protect the IP from counterfeiters is to register the copyright, trademark, industrial design, or patent in each market, country, or territory you intend to use it in. Some countries have a higher amount of counterfeit goods, so it is a good idea to seek out protecting your companies' goods in higher-risk markets first. Other best practices to consider when selling your IP globally are using vetted or reputable dealers or partners in foreign countries and building relationships to understand how your IP will be respected if exported.

Because IP laws and regulations vary widely globally, it is best to engage with international legal advisors to navigate the process. There are several agreements, systems, and treaties that companies can use to maximize their efforts in registering their products for multiple countries all at once.

The WIPO administers 26 treaties regarding IP rights. The list, along with more specific information on treaties, can be found in the references below. The World Trade Organization and its members also utilize the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.

The information presented above is intended to familiarize you with some of the issues regarding IP and variations worldwide. Legal advice is highly recommended for IP questions and legal matters. For more information on legal providers who specialize in international law, please reach out to info@ndto.com

References

Basic Facts About Trademarks: What Every Small Business Should Know. (2021, June). Retrieved from United States Patent and Trademark Office: https://www.uspto.gov/learning-and-resources/uspto-videos/basic-facts-about-trademarks-what-every-small-business-should

International Copyright Law. (2021, June ). Retrieved from International Trade Administration: https://legacy.export.gov/article?id=International-Copyright-Law

Trademark Information Network. (2021, June). Retrieved from United States Patent and Trademark Office: https://www.uspto.gov/trademarks/basics/trademark-information-network

TRIPS — Trade-Related Aspects of Intellectual Property Rights. (2021, June ). Retrieved from World Trade Organization: https://www.wto.org/english/tratop_e/trips_e/trips_e.htm

WIPO-Administered Treaties. (2021, June ). Retrieved from World Intellectual Property Organization: https://www.wipo.int/treaties/en/

World Intellectual Property Organization. (2021, June). Retrieved from https://www.wipo.int/portal/en/