Saturday, December 5, 2009

How to protect your Intellectual Properties in Local as well as Foreign Markets

The licensing of intellectual property has become a multi-billion dollar industry. As a result, business owners and individuals are looking for ways to preserve and maximize the value of their ideas inventions, artistic creations and other forms of intellectual property. The term Intellectual Property provides protection for creations of the mind. More specifically, they grant the creators, owner's exclusive rights to artistic and industrial creations. Industrial Intellectual Property rights are protected by Patents, Trademarks, and Designs while Artistic Intellectual Property rights are protected by Copyrights. Your Intellectual Property is all information, resorts you have used and all the products of your work. Intellectual property serves to protect company assets and prevent exploitation by others. Knowledge about intellectual property rights and an understanding of the fundamentals of copyrights, trademarks and patents is vital in today's global market. Many companies, however, fail to take the steps necessary to fully protect their valuable intellectual property assets. According to government agencies, more than $500 billion in legitimate global sales is lost each year to counterfeit goods.

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A trademark right lasts indefinitely as long as the owner continues to use the trademark. Periodic renewal is required. A patent for an invention is the grant of a property right to the inventor. The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention or "importing" the invention. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others for 20 years from making, using, offering for sale, selling or importing the invention. A copyright is a form of intellectual property that protects the authors of "original works of authorship" such as literary, dramatic, musical and artistic both written and unwritten, sound recordings and cinematograph films. A copyright protects the form of expression rather than the subject matter of the writing or the ideas. There are several rules for how long a copyright lasts. The duration of copyright protection in India is the life time of the author plus 60 years after his death.

 These are some of the important points to be kept in mind by the IP right holders to avoid possible infringement of their rights.

1.    Regular monitoring

Right holders should always keep sufficient, historical documents that undoubtedly establish their entitlement to those rights; it provides better chance to prevail in a future dispute over intellectual properties. If they have adequate proof of their rights, government agencies will help them to enforce their rights in accordance with law.

It is also advised that they must record copies of license agreements with administrative bodies, at national and local levels, since in most of the countries these administrative agencies have the authority to protect these rights and confiscate, destroy counterfeit good and also can impose fines.

 There is a legal difference if any organization create know-how, copyright works, confidential information or if it creates registrable IP such as patents, designs or trade marks.

2.    Having a defined organizational IP policy

A general IP policy, including guidelines regarding IP disclosure and ownership of IP by contractors; pro-forma confidentiality agreements, R&D agreements and collaboration agreements; and appropriate IP ownership clauses in contracts, including employee contracts, manufacturing/sales agreements. You should treat your employees and consultants as potential inventors and keep abreast of their creative input. It is crucial that  your company has a contracts which guarantee that all IP they create in connection with their employment or engagement stays in the company and they can not take it or spread it outside of the firm. Both employer and employee must understand the conditions under which they work and create within the company.

Copyright law, however, provides that freelancers and independent contractors automatically retain the copyright to any original work they create in absence of a written agreement to the contrary. Therefore, business owners should make sure that sensitive information wouldn't be any kind of misused.

3.    Possible Protection available in Foreign countries

Once company is familiar with available options to protect its intellectual property, it might consider conducting due diligence of potential foreign partners and determine where companies similar to its have experienced intellectual property problems.

If company intends to do, business in foreign countries, company should strongly consider filing its patents and trademarks and its relevant translations with the appropriate government agency in each country where protection is sought.

In some countries, the first party to file an application can prevent others from registering and obtaining legal protections for the same patent or trademark. Most countries do not require that you register your copyrights before enforcing them, but registration with the appropriate government agency is strongly recommended because it provides several benefits such as proof of ownership.

Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
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