Copyright, Trademarks and Patents

Intellectual Property: What Is It?

"Intangible asset that consists of original creative work manifested in a tangible form that can be legally protected. Intellectual property consists of copyrights, patents, trade-marks and trade secrets. Examples include literary or artistic works, business methods and industrial processes."

Below will be a discussion each on the following topics: copyright, patents, trademarks, industrial design and trade secrets. The last section will deal with the Internet.

A business owner can do some basic things to protect themselves and their business:

1. Determine your IP inventory including

   • Your customer list, your customers' their likes, dislikes, and credit terms
     
   • Your unique name for your company, product(s) or service(s)
   • New or novel way you have of doing something
     
   • Artwork, logos, instruction sheets, advertising, catch phrases, training manuals, marketing material or slogans, jingles or other material that has a distinctive feel or look
   
   

2. Determine how much money you want to spend to protect these intangibles

3. Protect your IP on your own

   1. Don't leave important material lying around where the "general public can see it.
      
   2. Build firewalls on your company internal computer network. These are software security barriers designed to keep unauthorized users from viewing certain files or networks.
   3. Divide information between those employees who need it and those who don't.
      
   4. Have an employment agreement that protects your IP when an employee leaves.

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Copyright

What can you copyright?

You can copyright any of your creative work, such as:

• Books
• Music
• Art
• Film
• Photographs
• Movies/videos
• Sculpture
• User Guides
• Manuals
• Logos (if a logo is an expression and used for decorative purposes)

What is actually copyrighted?

Copyright does not protect the idea behind the work. It only protects the work once it is written or in a fixed state.

Copyright gives you the right to the unique way you express an idea, but not to the idea itself (titles, names, catch phrases and short word combinations are not protectable by copyright).

Levels of protection

The date a particular work was created is extremely importantl (in other words, who came up with it first). The easiest way to prove ownership is to send a copy of the work to yourself by registered mail (but don't open it) or by email.

Register your copyright. You can do this online at Canadian Intellectual Property Office' website.

Duration of protection

In Canada, copyright lasts 50 years after the owner’s death.

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Patents

What is a patent?

Through a patent, the government gives you, the inventor, the right to exclude others from making, using or selling your invention from the day the patent is granted. Inventions include processes, equipment, and manufacturing techniques. You can use your patent to make a profit by selling it, licensing it or using it as an asset to negotiate funding.

They do not cover any artistic or aesthetic qualities of an article. Unlike copyrights, patents can only be obtained by registration.

What can you patent?

There are 3 basic criteria:

• The invention must be new (first in the world).
• It must be useful (functional and operative).
• It must show inventive ingenuity and not be obvious to someone skilled in that area.

The invention can be a product (a door lock), a composition (a chemical composition used in lubricants for door locks), an apparatus (a machine for making door locks) or a process (a method for making door locks), or an improvement on any of these.

Ninety percent of patents are, in fact, for improvements to existing patented inventions. A patent is granted only for the physical embodiment of an idea—e.g., the description of a plausible door lock—or for a process that produces something saleable or tangible.

You cannot patent a scientific principle, an abstract theorem, an idea, a method of doing business, a computer program, or a medical treatment.

Where to register

You must obtain patent protection in each country where you want protection. Patents are generally the most expensive forms of IP protection.

Duration of protection

In Canada, this protection extends for 20 years from the date of filing.

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Trademarks

What are trademarks?

Trade-marks are used to distinguish the goods or services of one person or company from those of another. Slogans, names of products, symbol or design, distinctive packages or unique product shapes are all examples of features that are eligible for registration as trade-marks.

Sometimes, one aspect of a work may be subject to copyright protection and another aspect may be covered by trade-mark law. For example, if you created a new board game, you might enjoy a copyright on the artwork applied to the face of the game board, the rules of the game and a trade-mark for the game's title.

A trademark is identified with a "TM". The common link is that a trademark is used to identify a specific item, product or brand. A service mark ("SM") is very much like a trademark except that it identifies or distinguishes the source of a service rather than a product.

Types of trademarks

There are three basic categories of trade-marks:

• Ordinary marks are words or symbols (or a combination of these features), that distinguish the wares or services of a specific firm or individual. Suppose you opened a courier business which you called "Giddy-up." You could register the words as a trade-mark (assuming all legal requirements were met) for the service you offer.

• Certification marks identify wares or services which meet a defined standard. They are owned by one person but licensed to others to identify wares or services which meet a defined standard. Examples are: the Woolmark design owned by Woolmark Americas, Ltd., for use on clothing and other wares and the logo of the Association of Professional Engineers.

• Distinguishing guise identifies the shaping of wares or their containers, or is a mode of wrapping or packaging wares. If you manufactured candy moulded to look like butterflies, you might want to register the butterfly shape as a trade-mark under "distinguishing guise."

Do I need to register a trademark?

Although trademarks are established by common law (you establish your trademark simply by using it), in the event of dispute, you will have a much stronger case if you have registered your trade mark with the appropriate body.

Where to register

Trademarks must be registered in each country where the item will be sold.

Duration of protection

Your federal trademark registration lasts 15 years, with 15-year renewal terms. Your trademark rights can last indefinitely if you follow these steps and continue to use the mark to identify your goods and services.

Unregistered trademarks

Before a trademark is formally registered, the owner has what are called "common law" rights to the mark, provided that person or entity is the first to use it in commerce. But this will depend on factors such as the extent to which, and the manner in which, the trademark has been used and has become known.

Unregistered trademarks have further drawbacks. Under Canadian trademark law, a company is prohibited from directing attention to its product in a way that is confusing to the public. A company is also prohibited from making use of a false description that will mislead the public as to the character, quality, quantity or composition of the product, the geographical origin of the product, or the mode of manufacture, production, or performance of the product.

How to file a trademark application (register a trademark)?

You can register a trademark online, without an attorney. Most of the information you need can be obtained at the Canadian Intellectual Property Office.

The Canadian Intellectual Property Office, in addition to answer basic questions, enables you do an online trademark search. You can also access necessary forms and submit the application.

Despite the information on the Canadian Intellectural Property Office, there are still gray areas and nuances to trademark law that argue in favour of consulting an experienced trademark lawyer.

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Industrial Design (Design Patents – in some countries)

What is industrial design protection?

Industrial Design protects the visual features of shape, appearance, configuration, pattern or decoration (or any combination of these features), applied to a finished article of manufacture. You are entitled to produce, use, rent, sell or license a product that incorporates the design.

Where to register

Industrial design must be registered in each country in which the item will be sold.

Duration of protection

The protection lasts for a period of 10 years from the date of registration. However, you must file an application for industrial design protection within one year after it was first adopted or else it is considered available for use by the public.

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Trade Secrets

What is trade secret protection?

It is protection for your ideas for future improvements or innovations (i.e. trade secrets) under common law.

If you have a formula or process you want to protect but don't want to patent it because you didn't want to share it with anyone, what you really have is a trade secret. The best example of this kind of IP is the formula for Coca-Cola. Its real value is that only three or four people know what it is. Keeping it as a trade secret means they don't have to share it now, or in 20 years when the patent expires.

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Internet

The Web is a remarkable tool for doing business and promoting your company worldwide. However, there are still many grey areas concerning cyberlaw.

Domain name

Your domain name - the word or phrase that identifies your Web site (such as Be Your Own Boss) - may qualify as a legal trademark if you use it as a trademark to distinguish your wares or services. Also, the domain name must be registrable according to the Trademark Act.

How to Trademark a Domain Name

• Conduct a trademark search.
  Before you register a domain name, conduct a trademark search to find any trademarks that conflict with the name you want. You can do your own trademark search at the Canadian Intellectual Property Office website.
  
  Note: It's a good idea to do a trademark search even before you register your domain name as domain registrars are not obligated to check if a requested name violates an existing trademark. In other words, your domain name many conflict with someone else's trademark. And if you do receive a domain name that creates a trademark conflict, you could lose the right to it if the trademark owner takes legal action against you.
  
• Fill out an application.
  Forms can be obtained at the Canadian Intellectual Property Office. After filing an application, the Canadian Trademark Office will review it and determine whether it can register the trademark.
  
• Protect your trademark.
  To alert the public of your trademark rights, you can use the TM symbol. To use this symbol, you do not need to register your trademark (which means that your claim may or may not be valid). Once your trademark is registered with the Canadian Trademark Office, you can use the "®" symbol.

Links

It is legal to set up a Web site and have that site link to other sites without permission. A link is not something that is considered to be protected by copyright law.

However, the potential for trouble increases if you link to an inside page (not the home page) of the other site or if you capture the other site within your site's frames. It's safer to link to the home page and to include coding that allows the other site to display in its own window.

Content

You risk copyright violation if you copy the content, graphics, layout, name, look or feel of another website without express permission. Canada and several other countries subscribe to a copyright convention that protects copyright in member countries.

Most often, the company that owns the website owns the information contained on that site, but not always. Some Web sites allow the writer of material on the site to maintain the copyright, and thus the right to republish the material.

You can be held liable for content posted to your bulletin boards or chat rooms by persons other than yourself. Check this content regularly and remove anything that could be problematic.

Copying information

Most information that you see on most sites is protected by copyright law and cannot be published again without the permission of the holder of the copyright. Sometimes information you read may be part of the public domain and can be used again.

Design

The design is likely to be owned by the site, although it is conceivable that the designer retained ownership of the design. Again, permission would be needed to use a design.

Can the designs of a Web site be copyrighted? Yes. All you need to do is put your copyright symbol (©) at the bottom of the page with the year and the name of the copyright owner.

If you want the ability to sue someone for copyright infringement, it's a good idea to register your copyright. The forms are available at the Canadian Intellectual Property Office.

Internet advertising

Avoid advertising statements that would be illegal or prohibited in other media. Be particularly cautious if your site advertises alcohol, tobacco, pharmaceuticals, financial services, gambling, contests or adult entertainment.

Email

Email is also subject to copyright protection. If you receive emailed newsletters, for example, you cannot post all or part of the content to another mailing list or to a website without permission from the business that owns the copyright.

Other websites for information about copyright, patents and trademarks:

Canadian Intellectual Property Office, a component of Industry Canada, has lots of information about forms, registering, etc.

World Wide Legal Information Association – an in-depth article on copyright in Canada

A Guide to Copyrights - on the strategis website

The Business Link, Business Service Centre - info on copyright, patents and trademarks

Access Copyright - A Canadian Copyright Licensing Agency

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