Intellectual Property

What is IP? (4)

Rights and protection of works

Intangible relationships (eg ford connected to colour blue)

Right to exclude others from using

Economic growth and financial success of businesses

TRIPS agreement (5)

Minimum standards for IP regulations

Ensures that legislation in developing countries is same/similar to North America & Europe

Protection, enforcement and settlement

Most favoured nation treatment- no trading partner should be more favoured

Expert assistance needed in each country where want to do business

Organisations addressing aspects of IP (2)

World Intellectual Property Organisation (WIPO)

World Trade Organisation (WTO)

Patent (6)

Short term monopoly, 20 years, exchange for sharing invention with public at expiry, objects

Not automatic protection of invention

Invention new (more than 1 year), useful (not just idea, actually works, can be reproduced by someone “skilled in the art”) and not obvious (many fail this step, not obvious to someone skilled in the art)

Improvements to existing ok as long as not superficial/cosmetic

Rights generally non-renewable

If use/advertise before patented, might not be able to patent

Patent Application Procedure (4)

Application by inventor/their agent- first to file owns

Patent agents- skilled, assist

Search for similar

Pay fee + disclosure written in simple language

Foreign Patent Protection (3)

Paris Convention, 12 months, uses filing date of home country

Patent Infringement (2)

Use patent without consent

Compensation/injunctions

20 year patent rule (3)

Expires after 20 years then back in public domain

Have to file for protection in every country you want it protected

Exceptions- emergences, maintaining peace, HIV/AIDS

Trademarks (5)

Federal

Can’t be descriptive, already in use, confusing with already in use, contrary to public interest

Needs to be distinctive, use it or lose it

Injunction

Forgery = offence (passing off)

Trademark can’t be (5)

Royalty

Gov

Famous

Dead within 30 years

Offensive

How to know if trademarked?

R in circle, TM if not

Elements to establish under Trademarks Act (4)

Plaintiff reputation

Misrepresentation by D

Actual/likelihood of public confusion

Damage as a result

Copyright (5)

Right to publish/perform

The Berne Convention- WIPO & original work

Registration not required, automatic protection

Author’s life + 70 years

In whole or in part

Moral rights of creator of copyrighted work (3)

Identified as creator

Work not altered dishonurly (tash drawn on)

Work not used in connection with other things

Defence for copyright

Fair dealing- research, study, criticise, review etc

Needs to be referenced

Copyright Infringement

Unauthorised copying

Damages, injunction, lost profits back

Plagiarism

Taking copyrighted work

Digital (4)

Some web content exempt

Courts use website’s terms of use

Anonymous for music so hard to check illegal downloads

Copying music to another platform and backing up data for private use is fine

When will further works enter the domain in Canada?

Not until start of 2043

Industrial Design (5)

Gov give right for ornamental features

Registered

Original

Features/pattern not protected

Covers mass-produced goods for 10 years

Trade secrets (2)

Confidential recipe/method/data

Has actual/potential value in not being known

License agreements (3)

IP owner grants license in return for payment

To commercialise IP

Requires little time and expertise of licensor

Franchise (3)

License to use trademarks

Lengthy contract

Upfront payment