What Developers and Designers need to know about Intellectual property

Every 26th of April, we celebrate World Intellectual Property Day to learn about the role that intellectual property (IP) rights play in encouraging innovation and creativity.

“Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.” — WIPO

Intellectual property rights are the rights given to people over the creations of their minds. They usually give the creator an exclusive set of rights over the use of his/her creation for a certain period of time.

Intellectual property rights are at the foundation of the tech industry. The term refers to a range of intangible rights of ownership in assets such as software/design. Each intellectual property “right” is itself an asset, a slice of the overall ownership pie. The law provides different methods for protecting these rights of ownership based on their type.

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What is copyright?

“Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculptures, and films, to computer programs, databases, advertisements, maps, and technical drawings.”

Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such. Copyright may or may not be available for several objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.

There are two types of rights under copyright:

• Economic rights, which allow the rights owner to derive financial reward from the use of their works by others; and
• Moral rights, which protect the non-economic interests of the author.

Most copyright laws state that the rights owner has the economic right to authorize or prevent certain uses concerning work or, in some cases, to receive remuneration for the use of their work (such as through collective management). However, the most important exception to be aware of are computer programs and employees. In most situations, employees do not enjoy moral rights.

In the majority of countries, and according to the Berne Convention, copyright protection is obtained automatically without the need for registration or other formalities. Most countries nonetheless have a system in place to allow for the voluntary registration of works. Such voluntary registration systems can help solve disputes over ownership or creation, as well as facilitate financial transactions, sales, and the assignment and/or transfer of rights.

Economic rights have a time limit, which can vary according to national law. In those countries which are members of the Berne Convention, the time limit should be equal to or longer than 50 years after the creator’s death. Longer periods of protection may, however, be provided at the national level.

In the past, some countries had legislation in place that required the copyright holder to comply with certain formalities in order to receive copyright protection. One of those formalities was to include an indication that copyright had been claimed, such as by using the symbol ©. Currently, very few countries still impose formalities on copyright, therefore the use of such symbols is no longer a legal requirement. Nonetheless, many right owners still include the symbol © as a highly visible way to emphasize that that work is protected by copyright and that all rights are reserved, as opposed to a less restrictive license.

Generally, software is protected under copyright law. When a software developer writes any code they retain the ownership or copyright of the software. The owner of the copyright can then:

• License the copyright to others for use under certain terms and conditions
• Transfer ownership to another person or company, as agreed under the contract

When thinking about copyright and IP rights, it shouldn’t just include code. It should cover designs, wireframes, documentation, diagrams, or any other asset created by your developer or software company for you.

What is a trademark?

“A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.”

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include brand names, slogans, and logos. The term “trademark” is often used in a general sense to refer to both trademarks and service marks.

At the national/regional level, trademark protection can be obtained through registration, by filing an application for registration with the national/regional trademark office and paying the required fees. At the international level, you have two options: either you can file a trademark application with the trademark office of each country in which you are seeking protection, or you can use WIPO’s Madrid System.

You cannot register any sign as a trademark if it consists of or contains an emblem that has protection under an international agreement. One such agreement is Article 6ter of the Paris Convention for the Protection of Industrial Property.

The purpose of Article 6ter is to protect and prevent the registration and use of, trademarks that are identical with, or very similar to:

• armorial bearings
• flags and other State emblems
• official signs
• hallmarks
• other emblems
• abbreviations and names of international inter-governmental organizations

In principle, a trademark registration will confer an exclusive right to the use of the registered trademark. This implies that the trademark can be exclusively used by its owner, or licensed to another party for use in return for payment. Registration provides legal certainty and reinforces the position of the right holder, for example, in case of litigation.

The term of trademark registration can vary but is usually ten years. It can be renewed indefinitely on payment of additional fees. Trademark rights are private rights and protection is enforced through court orders.

A word or a combination of words, letters, and numerals can perfectly constitute a trademark. But trademarks may also consist of drawings, symbols, three-dimensional features such as the shape and packaging of goods, non-visible signs such as sounds or fragrances, or color shades used as distinguishing features — the possibilities are almost limitless.

The two symbols associated with trademarks, ™ (the trademark symbol) and ® (the registered trademark symbol), represent the status of a mark and accordingly its level of protection. While ™ can be used with any common law usage of a mark, ® may only be used by the owner of a mark following registration with the relevant national authority.

The Difference Between Copyright and Trademark

While both offer intellectual property protection, they protect different types of assets. Copyright is geared toward the products of your work. A trademark protects items that help define a company brand, such as its name and logo. For example, your company can trademark its name and logo but would copyright softwares and designs that you have created. If the software itself has a different name than your company, it is protected both by trademark and copyright.

What is a patent?

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.

In principle, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. In other words, patent protection means that the invention cannot be commercially made, used, distributed, imported, or sold by others without the patent owner’s consent.

Patents are territorial rights. In general, the exclusive rights are only applicable in the country or region in which a patent has been filed and granted, in accordance with the law of that country or region. The protection is granted for a limited period, generally 20 years from the filing date of the application.

What is industrial design?

In a legal sense, an industrial design constitutes the ornamental aspect of an article. An industrial design may consist of three-dimensional features, such as the shape of an article, or two-dimensional features, such as patterns, lines or color.

In principle, the owner of a registered industrial design or of a design patent has the right to prevent third parties from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.

Industrial designs are applied to a wide variety of products of industry and handicraft items: from packages and containers to furnishing and household goods, from lighting equipment to jewelry, and from electronic devices to textiles. Industrial designs may also be relevant to graphic symbols, graphical user interfaces (GUI), and logos.

In most countries, an industrial design needs to be registered to be protected under industrial design law as a “registered design”. In some countries, industrial designs are protected under patent law as “design patents ”.

Industrial design laws in some countries grant — without registration — time- and scope limited protection to so-called “unregistered industrial designs”. Depending on the particular national law and the kind of design, industrial designs may also be protected as works of art under copyright law.

Industrial design rights are granted for a limited period. The duration of the protection of industrial designs varies from country to country, but it amounts at least to 10 years. In many countries, the total duration of protection is divided into successive renewable periods.

Industrial design rights are usually enforced in a court, generally on the initiative of the owner of the rights, as provided for by the applicable law. The remedies and penalties vary from country to country and could be civil (injunctions to desist from an infringement, payment of damages, etc.), criminal or administrative.

The protection of industrial designs should form an integral part of any business strategy. The main reasons to protect industrial designs are the following:

• Return on investments: Protection contributes to obtaining a return on investments made in creating and marketing attractive and innovative products.
• Exclusive rights: Protection provides exclusive rights for at least 10 years, so as to prevent or stop others from commercially exploiting or copying the industrial design.
• Strengthen brands: Industrial designs can be an important element of a company’s brand. Protecting industrial designs contributes to protecting a company’s brand.
• Opportunity to license or sell: Protection provides rights that may be sold or licensed to another enterprise, which will then be a source of income for the owner of the rights.
• Positive image: Protection helps convey a positive image of a company since industrial designs are business assets that may increase the market value of a company and its products.
• Reward: Protecting industrial designs rewards and encourages creativity.

Industrial rights vs. Patents

An industrial design right protects only the appearance or aesthetic features of a product, whereas a patent protects an invention that offers a new technical solution to a problem. In principle, an industrial design right does not protect the technical or functional features of a product. Such features could, however, potentially be protected by a patent.

What is a trade secret?

Trade secrets are intellectual property (IP) rights on confidential information which may be sold or licensed.

In general, to qualify as a trade secret, the information must be:

• commercially valuable because it is secret,
• be known only to a limited group of persons, and
• be subject to reasonable steps taken by the rightful holder of the information to keep it secret, including the use of confidentiality agreements for business partners and employees.

The unauthorized acquisition, use, or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection.

In general, any confidential business information which provides an enterprise a competitive edge and is unknown to others may be protected as a trade secret. Trade secrets encompass both technical information, such as information concerning manufacturing processes, pharmaceutical test data, designs and drawings of computer programs, and commercial information, such as distribution methods, list of suppliers and clients, and advertising strategies.

A trade secret may be also made up of a combination of elements, each of which by itself is in the public domain, but where the combination, which is kept secret, provides a competitive advantage.

Other examples of information that may be protected by trade secrets include financial information, formulas and recipes, and source codes.

Depending on the legal system, the legal protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information.

Trade secrets may differ across jurisdictions but have three common traits:

not being public, offering some economic benefit, and being actively protected.

While a final determination of whether trade secret protection is violated or not depends on the circumstances of each case, in general, unfair practices in respect of secret information include industrial or commercial espionage, breach of contract, and breach of confidence.

If a trade secret holder fails to safeguard the secret or if the secret is independently discovered, released, or becomes general knowledge, protection of the secret is removed.

There are many examples of trade secrets that are tangible and intangible. One of them, Google Inc.’s search algorithm that exists as intellectual property in code and is regularly updated to improve and protect its operations. The secret formula for Coca-Cola, which is locked in a vault, is an example of a trade secret that is a formula or recipe. Since it has not been patented, it has never been revealed.

To protect its trade secrets, a company may require employees privy to the information to sign non-compete or non-disclosure agreements (NDA) upon hire or to incorporate them in their hiring agreement.