Intellectual Property law [Part-01]

❑ Introduction:
With the ever-changing technology and shrinking world boundaries, the term “Intellectual Property” is coming to
be used more often than ever. From tech companies, such as Samsung, Apple and Google to Biotechnology
enterprises such as Monsanto, everyone is vigil about protecting their Intellectual Property. Intellectual Property
(IP) is a legitimate idea which alludes to manifestations of the psyche for which exclusive rights are perceived.
Under intellectual property law, proprietors are conceded sure selective rights to an assortment of elusive
resources, for example, musical, literary, and aesthetic works; disclosures and developments; and words,
expressions, images, and outlines. Basic sorts of intellectual property rights incorporate copyrights, trademarks,
patents, industrial design rights, trade dress, and in a few words trade secrets. In the time of globalization and
digitalization, the Intellectual Property Rights turns into a smoldering inquiry. Electronic media like the web make
simple to duplicate one's intellectual property by another. The impersonation of intellectual property makes
concern the creator of the new advancement. For securing the privileges of intellectual property copyrights,
trademarks, patents, industrial design rights, trade dress, and in a few locales trade secrets facts are set up.

The scope of intellectual property is expanding very fast and attempts are being made by persons who create new
creative ideas to seek protection under the umbrella of intellectual property rights. IPR is a strong tool, to protect
the investment, time, money, and effort invested by the inventor/creator of the IP, as it gives the inventor/creator
an exclusive right for a certain period of time for the use of its invention/creation. Thus, IPR affects the economic
development of a country by promoting healthy competition and encouraging industrial growth and economic
growth.

There are many similarities in the law relating to the different species of intellectual property in regard to the
nature of the property, the mode of its acquisition, the nature of rights conferred, the commercial exploitation of
those rights, the enforcement of those rights and the remedies avail against infringement of those rights.

❑ Meaning of Intellectual Property:

The best place to start is with a consideration of the meaning of the word property, and thereafter, Intellect or
intellectual.

Thus, property is defined as anything owned by a person or entity. It was also defined as anything that a person or
business has legal title over. The outstanding features that most types of property share are that the owner of the
property is free to use it as she/he wishes, provided the use is not against the law, and to exclude others from so
using that owned item of property.

Intellectual on the other hand describes something or anything related to or using the mind or intellect.

Now the term "intellectual property" is reserved for types of property that result from creations of the human
mind, the intellect. Interestingly, the term intellectual property in the Convention Establishing the World
Intellectual Property Organization, or "WIPO", does not have a more formal definition. The States that drafted the
Convention chose to offer an inclusive list of the rights as relating to:

“Literary artistic and scientific works; performances of performing artists, phonograms, and broadcasts; inventions
in all fields of human endeavor; scientific discoveries; industrial designs; trademarks, service marks, and
commercial names and designations; protection against unfair competition; and "all other rights resulting from
intellectual activity in the industrial, scientific, literary or artistic fields.”

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Intellectual property, very broadly, means the legal rights which result from intellectual activity in the industrial,
scientific, literary and artistic fields. Countries have laws to protect intellectual property for two main reasons:

1. To give statutory expression to the moral and economic rights of creators in their creations and the rights
of the public in access to those creations.
2. To promote, as a deliberate act of Government policy, creativity and the dissemination and the
application of its results and to encourage fair trading which would contribute to economic and social
development.

Generally speaking, Intellectual Property (IP) is a legitimate idea which alludes to manifestations of the psyche for
which exclusive rights are perceived. Under intellectual property law, proprietors are conceded sure selective
rights to an assortment of elusive resources, for example, musical, literary, and aesthetic works; disclosures and
developments; and words, expressions, images, and outlines. Basic sorts of intellectual property rights incorporate
copyrights, trademarks, patents, industrial design rights, trade dress, and in a few words trade secrets. In the time
of globalization and digitalization, the Intellectual Property Rights turns into a smoldering inquiry. Electronic media
like the web make simple to duplicate one's intellectual property by another. The impersonation of intellectual
property makes concern the creator of the new advancement. For securing the privileges of intellectual property
copyrights, trademarks, patents, industrial design rights, trade dress, and in a few locales trade secrets facts are set
up.

❑ Definition of Intellectual Property Law:

Intellectual Property law deals with laws to protect and enforce rights of the creators and owners of inventions,
writing, music, designs and other works, known as the "intellectual property." There are several areas of
intellectual property including copyright, trademarks, patents, and trade secrets.

• Copyright law protects the rights of creators in their works in fine arts, publishing, entertainment, and
computer software. The laws protect the owner of the work if others copy, present, or display the owners
work without permission.
• Trademark law protects a word, phrase, symbol or design that is used by an entity to identify its product
or service. Examples are Dunkin Donuts orange and pink sausage style lettering, Apple’s apple logo, and
Adidas’ three stripes. Trademark owners can prevent others from using their marks, or marks which are
confusingly similar so that consumers would not be able to identify the source. Federal and state laws
govern trademarks but the Lanham Act is the primary source of trademark protection. These laws protect
against infringement and dilution. Rights in trademarks are gained by being the first to use a trademark in
commerce or being the first to register the mark with the United States Patent and Trademark Office.
• Patent law grants protection for new inventions which can be products, processes or designs and
provides a mechanism for protection of the invention. The patent law promotes the sharing of new
developments with others to foster innovation. The patent owner has the right to protect others from
producing, using, distributing or importing the protected item. Essentially the patent is a property right
that can be licensed, sold, mortgaged or assigned.
• Trade secrets are business practices, formulas, designs or processes used in a business, designed
specifically to provide a competitive advantage to a business. These trade secrets would not be otherwise
known to an “outsider” of the business. An example of this is the formula for Coca Cola. Trade secrets are
protected without registration and appropriate steps should be taken by the owner to maintain
confidentiality.

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❑ What are Intellectual Property Rights:
“IPRs have been justified on basis of both consequentialist approach and rights-based grounds in order to
appreciate their importance intellectual works in return of monetary benefit for sustainable economic growth and
development of the global economy.” - UNCTAD/ICTS. 2002

Essentially, Intellectual Property Rights are a bundle of exclusive rights over creations of the mind- both artistic and
commercial. Therefore, IP denotes the specific legal rights which authors, inventors and other IP holders may hold
and exercise not the intellectual work itself. Intellectual property rights such as copyright, patents and trademarks
can be viewed like any other property right. They allow the creators or owners of IP to benefit from their work or
from their investment in a creation by giving them control over how their property is used. IP rights have long been
recognized within various legal systems. For example, patents to protect inventions were granted in Venice as far
back as the fifteenth century Modern initiatives to protect IP through international law started with the Paris
Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary
and Artistic Works (1886). These days, there are more than 25 international treaties on IP administered by WIPO.
IP rights are also safeguarded by Article 27 of the Universal Declaration of Human Rights.

❑ History of IP:
Although a number of the lawful standards administering principles governing intellectual property rights have
advanced over hundreds of years, it was not until the nineteenth century that the term principles governing
intellectual property started to be utilized, and not until the late twentieth century that it got to be distinctly
typical in most of the world.

• The British Statute of Anne 1710 and the Statute of Monopolies 1623 are presently observed as the inceptions
of copyright and patent law separately.
• Present day utilization of the term intellectual property backpedals at any rate the extent that 1867 with the
establishing of the North German Confederation whose constitution allowed authoritative control over the
assurance of intellectual property to the confederation.
• At the point when the managerial secretariats built up by the Paris Convention (1883) and the Berne
Convention (1886) converged in 1893, they situated in Berne, furthermore embraced the term intellectual
property in their new joined title, the United International Bureaux for the Protection of Intellectual
Property.
• The association in this manner moved to Geneva in 1960 and was prevailing in 1967 with the foundation of the
World Intellectual Property Organization (WIPO) by settlement as an office of the United Nations. As per
Lemley, it was just now that the term truly started to be utilized as a part of the United States (which hosted
not been a get-together to the Berne Convention), it didn't enter well known use until entry of the Bayh-Dole
Act in 1980.
• The historical backdrop of patents does not start with developments, but instead with regal allows by Queen
Elizabeth I (1558–1603) for imposing business model benefits. Around 200 years after the ending of Elizabeth's
rule, nonetheless, a patent speaks to a legitimate right acquired by a creator accommodating selective control
over the generation and offer of his mechanical or logical development exhibiting the advancement of licenses
from illustrious privilege to customary-law tenet.
• In 1818 accumulation of his compositions, the French liberal scholar, Benjamin Constant, contended against
the as of late presented thought of "property which has been called intellectual.”
• The term intellectual property can be discovered utilized as a part of an October 1845 Massachusetts Circuit
Court governing in the patent case Davoll et al. v. Brown, in which Justice Charles L. Woodbury composed that
"exclusive thusly would we be able to ensure intellectual property, the works of the brain, creations and
interests are as much a man's own particular as the wheat he develops, or the groups he raises."

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• The announcement that "disclosures are property" backtracks prior. Section 1 of the French law of 1791
expressed, "All new disclosures are the property of the creator; to guarantee the designer the property and
International Journal of Business and impermanent delights in his revelation, there should be conveyed to him
a patent for five, ten or fifteen years."
• In Europe, French creator A. Nion said proprieteintellectuelle in his Droitscivils des auteurs, artistes
etinventeurs, distributed in 1846.
• As of not long ago, the reason for intellectual property law was to provide major security conceivable keeping
in mind the end goal to support development.
• Truly, hence, they were allowed just when they were important to support creation, restricted in time and
degreeJewish law incorporates a few contemplations whose impacts are like those of present-day intellectual
property laws, however the idea of intellectual manifestations as property does not appear to exist –
eminently the rule of HasagatGe'vul (uncalled for infringement) was utilized to legitimize constrained term
distributer (yet not the creator) copyright in the sixteenth century.
• In 500 BCE, the legislature of the Greek condition of Sybaris offered one year's patent "to all who ought to find
any new refinement in extravagance."

❑ Nature and Scope of IP:

Generally speaking, IP law aims at safeguarding creators and other producers of intellectual goods and services by
granting them certain time- limited rights to control the use made of those productions. These rights do not apply
to the physical object in which the creation may be embodied but instead to the intellectual creation as such. IP is
traditionally divided into two branches: “industrial property and copyright”. Thus, Intellectual property shall
include rights relating to:

1. literary, artistic and scientific works:

2. performances of performing artists, phonograms and broadcasts;

3. inventions in all fields of human behavior;

4. scientific discoveries;

5. industrial designs;

6. trademarks, service marks, and commercial names and designations;

7. protection against unfair competition and all other rights resulting from intellectual activity in industrial
scientific, literary or artistic fields”.

The areas mentioned under (1) belong to the copyright branch of intellectual property. The areas mentioned in (2)
are usually called “neighboring rights”, that is, rights neighboring on copyright. The areas mentioned under 3, 5
and 6 constitute the industrial property branch of IP. The areas mentioned may also be considered as belonging to
that branch.

In Nigeria, there is a major conventional mode of classification of intellectual property as Copyrights, Patent, Trade
Marks, and Industrial Design.

Copyright: A copyright gives the creator of an original work exclusive rights to it, usually for a limited time.
Copyright may apply to a wide range of literary, artistic, creative, intellectual, or artistic forms, or "works".
Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.

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Note that copyright protects works, that is the expression of thoughts, and not ideas. So, if you imagine a plot, this,
as such, is not protected. For example, a plot consisting of a story about young men and women falling in love
despite family and caste obstacles would not be protected. Different writers may build stories based on a similar
plot. But when you express it in a synopsis or in, say, a short story, or a play, the expression of the plot in that story
will be protected. Hence, for example, Shakespeare’s play Romeo and Juliet would be considered as a creative
expression of that plot. Still, other writers may build new stories based on a similar plot.

Patents: A patent is a form of right granted by the government to an inventor or their successor-in-title, giving the
owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a
limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific
technological problem, which may be a product or a process and generally has to fulfill three main requirements: it
has to be new, not obvious and there needs to be an industrial applicability. To enrich the body of knowledge and
stimulate innovation, it is an obligation for patent owners to disclose valuable information about their inventions
to the public.

Example of inventions: electric iron, safety pin, ball point pen, telephone, etc.

Industrial design rights: An industrial design right (sometimes called "design right" or design patent) protects the
visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape,
configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form
containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a
product, industrial commodity or handicraft. Generally speaking, it is what makes a product look appealing, and as
such, it increases the commercial value of goods.

Trademarks: A trademark is a recognizable sign, design or expression which distinguishes products or services of a
particular trader from similar products or services of other traders. Trademark may consist of, for example, a word,
a logo, a number, a letter, a slogan, a sound, a color, or sometimes even a smell or texture and which is used to
identify the source of goods and/or services with which the trademark is used. When a trademark is used in
connection with services, it is sometimes referred to as a “service mark”.

It is both just and appropriate that the person putting in the work and effort into an intellectual creation has some
benefit as a result of this endeavor. By giving protection to intellectual property, many of such endeavors are
encouraged and industries based on such work can grow, as people see that such work brings financial return.

An example of this later point is given by the case of the world pharmaceutical industry. An investment of many
years, and R&D expenses (lab time for creation, testing, government or agency approval procedures) running into
the hundreds of millions of pounds sterling (or yen, rands, lira, dollars, or naira as the case may be) may be
necessary before any new medicine reaches the market. Without the IP rights to exclude competitors from also
making such a new medicine, the pharmaceutical company creating such a new compound would have no
incentive to spend the time and efforts outlined above to develop their drugs.

Without patent protection, such a company would face economic losses originating from the "free-riding" of their
competitors. Without trademark protection, this company, again, could not build "brand loyalty" that, hopefully,
would last beyond the years of protection granted by patents. Without the protections given within IP laws and
treaties, such pharmaceutical firms simply would not commit an effort to experiment, in searching for new health
products. As you can see from this brief example, without the protections outlined above, the world might well be
literally less healthy than it is. Finally, Intellectual property rights may also help to extend protection to such things
as the unwritten and unrecorded cultural expression of many developing countries, generally known as folklore.
With such protection they may be exploited to the benefit of the country and cultures of origin.

❑ Subject-matters of IP:

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The convention establishing the World Intellectual Property Organization (WIPO), concluded, in Stockholm on July
14th, 1967, according to Article-02(8) of World Intellectual Property Act, provides that, ‘intellectual property’ shall
include rights relating to:

1. Literary, artistic and scientific works: Under Article 02(1) of the Berne Convention (1886)-

The expression “literary and artistic works” shall include every production in the literary, scientific and artistic
domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings;
lectures, addresses, sermons and other works of the same nature; dramatic or dramatic musical works;
choreographic works and entertainments in dumb show; musical compositions with or without words;
cinematographic works to which are assimilated works expressed by a process analogous to cinematography;
works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are
assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps,
plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

Scientific Work means research, advisory, teaching and/or development or specialist scientific duties of such a
scientific nature as to require the possession and utilization of a post-graduate university degree in order that they
may be properly performed.

2. Performances of performing artists, phonograms and broadcast: The Rome Convention secures protection
in performances for performers, in phonograms for producers of phonograms and in broadcasts for
broadcasting organizations.
• Performers (actors, singers, musicians, dancers and those who perform literary or artistic works) are
protected against certain acts to which they have not consented, such as the broadcasting and
communication to the public of a live performance; the fixation of the live performance; the reproduction
of the fixation if the original fixation was made without the performer's consent or if the reproduction
was made for purposes different from those for which consent was given.
• Producers of phonograms have the right to authorize or prohibit the direct or indirect reproduction of
their phonograms. In the Rome Convention, “phonograms” means any exclusively aural fixation of sounds
of a performance or of other sounds. Where a phonogram published for commercial purposes gives rise
to secondary uses (such as broadcasting or communication to the public in any form), a single equitable
remuneration must be paid by the user to the performers, to the producers of the phonograms, or to
both. Contracting States are free, however, not to apply this rule or to limit its application.
• Broadcasting organizations have the right to authorize or prohibit certain acts, namely the
rebroadcasting of their broadcasts; the fixation of their broadcasts; the reproduction of such fixations; the
communication to the public of their television broadcasts if such communication is made in places
accessible to the public against payment of an entrance fee.

The Rome Convention allows for limitations and exceptions to the above-mentioned rights in national laws as
regards private use, use of short excerpts in connection with reporting current events, ephemeral fixation by a
broadcasting organization by means of its own facilities and for its own broadcasts, use solely for the purpose of
teaching or scientific research and in any other cases where national law provides exceptions to copyright in
literary and artistic works. Furthermore, once a performer has consented to the incorporation of a performance in
a visual or audiovisual fixation, the provisions on performers' rights have no further application.

As to duration, protection must last at least until the end of a 20-year period computed from the end of the year in
which (a) the fixation was made, for phonograms and for performances incorporated therein; (b) the performance
took place, for performances not incorporated in phonograms; (c) the broadcast took place. However, national
laws increasingly provide for a 50-year term of protection, at least for phonograms and performances.

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WIPO is responsible, jointly with the International Labour Organization (ILO) and the United Nations Educational,
Scientific and Cultural Organization (UNESCO), for the administration of the Rome Convention. These three
organizations constitute the Secretariat of the Intergovernmental Committee set up under the Convention
consisting of the representatives of 12 Contracting States.

The Convention does not provide for the institution of a Union or budget. It establishes an Intergovernmental
Committee composed of Contracting States that considers questions concerning the Convention.

This Convention is open to States party to the Berne Convention for the Protection of Literary and Artistic Works
(1886) or to the Universal Copyright Convention. Instruments of ratification or accession must be deposited with
the Secretary-General of the United Nations. States may make reservations with regard to the application of
certain provisions.

The TRIPS Agreement also contains provisions on the protection of related rights. These provisions are different, in
several respects, from those contained in the Rome Convention and in the Geneva Convention for the Protection
of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (1971).

3. Inventions in all fields of human endeavor:

“Invention” means a solution to a specific problem in the field of technology. An invention may relate to a product
or a process. The protection conferred by the patent is limited in time (generally 20 years).

4. Scientific Discoveries: Prior to the 19th century, the term “discovery” commonly referred to the product
of successful inquiry. “Discovery” was used broadly to refer to a new finding, such as a new cure, an
improvement of an instrument, or a new method of measuring longitude. Several natural and
experimental philosophers, notably Bacon, Descartes, and Newton, expounded accounts of scientific
methods for arriving at new knowledge. These accounts were not explicitly labeled “methods of
discovery”, but the general accounts of scientific methods are nevertheless relevant for current
philosophical debates about scientific discovery. Scientific discovery is the process or product of
successful scientific inquiry. Objects of discovery can be things, events, processes, causes, and properties
as well as theories and hypotheses and their features (their explanatory power, for example). Most
philosophical discussions of scientific discoveries focus on the generation of new hypotheses that fit or
explain given data sets or allow for the derivation of testable consequences. Philosophical discussions of
scientific discovery have been intricate and complex because the term “discovery” has been used in many
different ways, both to refer to the outcome and to the procedure of inquiry. In the narrowest sense, the
term “discovery” refers to the purported “eureka moment” of having a new insight. In the broadest sense,
“discovery” is a synonym for “successful scientific endeavor” tout court. Some philosophical disputes
about the nature of scientific discovery reflect these terminological variations.
5. Industrial Designs: According to World Design Organization, industrial design is the process of design
applied to products that are to be manufactured through techniques of mass production. This
distinguishes industrial design from craft-based design, where the form of the product is determined by
the product’s creator at the time of its creation. Industrial Design (ID) is the professional practice of
designing products, devices, objects, and services used by millions of people around the world every day.
Industrial designers typically focus on the physical appearance, functionality and manufacturability of a
product, though they are often involved in far more during a development cycle. All of this ultimately
extends to the overall lasting value and experience a product or service provides for end-users.
6. Trademarks, service marks and commercial names and designation:

A trademark is a word, phrase, symbol, trade dress, product configuration, jingle or even scent which identifies the
source, origin or sponsorship of the owner’s goods and distinguishes those goods from the goods of another.
According to WIPO, “A trademark is a sign capable of distinguishing the goods or services of one enterprise from
those of other enterprises. Trademarks are protected by intellectual property rights.” The purpose of a mark is to

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guarantee to a consumer or other relevant member of the public that the goods or services in connection with
which the mark is used are genuine, and that the goods or services so marked have a certain consistency in their
quality. Trademarks and service marks are representations of the “goodwill” that the owner enjoys in the minds of
the public. Trademark law grew out of the “common law” (judicial case law) on unfair competition, which more
generally prohibits the false representation of a product’s origin, materials or other characteristics, where that
false representation is likely to confuse, deceive or mislead the public.

A service mark is a word, phrase, symbol, etc. which does the same thing for services. Trademarks, service marks
and certain other indicia are often collectively referred to as “marks”.

A trade name is used by its owner to identify the owner’s business or vocation; often, a company’s trade name
also functions as a trademark, a service mark or both.

Court decisions and Argentine doctrine of the authors consider designations and trade names to be IP rights.
Section 27 of the Law on Trademarks establishes that "a name or sign designating a profit-making or non-profit-
making activity shall constitute property for the purposes of this law". However, this does not imply the possibility
of registering designations. According to Section 28 of the Law on Trademarks, designation ownership is attained
through use and only in relation to the field in which it is used. Further, the designation must be unmistakable
compared with those pre-existing marks in the same field. Clearly, if a commercial designation acquires a certain
degree of renown in the public sphere, it also obtains specific economic value. Regarding the territorial scope of
commercial designations, while a trademark's protection applies in the entire country and classes in which it is
registered, designations are valid in the territory where they have effective influence and in the specific types of
activity in which they are used. Section 29 of the Law on Trademarks sets out a right of opposition in favor of
designation owners when a designation is used by a third party. Section 151 of the Civil and Commercial Code
applies to the names of all legal persons – including companies – and establishes that said name should: meet the
requirements of veracity, novelty and distinctive capacity, both in relation to other names, such as marks, fancy
names and other ways to refer to goods or services, whether or not they are related with the purpose of the legal
person.

Although Section 151 includes no specific reference to 'commercial designations', which have their own legal
regime and individuality, they arguably fall under "fancy names or other ways to refer to goods or services" and
therefore within the scope of Section 151 of the Civil and Commercial Code.

7. Production against unfair competition: As a general rule, any act or practice carried out in the course of
industrial or commercial activities contrary to honest practices constitutes an act of unfair competition;
the decisive criterion being “contrary to honest practices”. In Belgium and Luxembourg honest practices
are sometimes referred to as “honest trade practices”, in Switzerland and Spain as “the principle of good
faith” and in Italy as “professional correctness”. A wide interpretation can be given to ‘an act or practice
contrary to honest practices. For example, an omission to act can also be considered an act of unfair
competition. The WIPO Model Provisions on Protection Against Unfair Competition defines the “failure to
correct or supplement information concerning a product test published in a consumer magazine, thereby
giving a wrong impression of the quality of the product offered on the market, or failure to give sufficient
information concerning the correct operation of a product or concerning possible side-effects of a
product,” as an act of unfair competition. WIPO also states that failure to comply with honest practices
should arise “in the course of industrial or commercial activities”. This can be broadly understood as being
activities of organizations providing goods or services – particularly the selling or buying of such products
or services – and activities of professionals such as medical doctors or legal experts. To prevent unfair
practice, certain actions are limited by law. Article 10 bis of the Paris Convention classifies unfair business
practices into three broad categories: Acts causing confusion, Acts that are misleading, Acts damaging
goodwill or reputation. Under the Paris Convention, Member States are obliged to provide protection

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 against unfair competition. This obligation is reinforced by Article 2 of the Trade-Related Aspects of
Intellectual Property Rights (TRIPS) that obliges members of the WTO to comply with the Paris Convention.

WIPO has recognized the above-mentioned creation of the human mind as eligible to be protected under the law
of Intellectual Property. All the works mentioned above, except scientific discoveries, are protected at national and
international levels. No national law and International Treaty give any property rights in scientific discoveries.
Scientific Discovery is different from Invention. According to Article 1 (I) of the Geneva Treaty on the International
Recording of Scientific Discoveries, 1978- Scientific Discovery may be defined as “the recognition of phenomena,
properties or laws of the material universe, no hitherto recognized and capable of verification.”

Phillips Vs News Group Newspaper Ltd, 2012

In this case, the court held on subject matter- includes trademark, copyright, patents etc. and has no unanimity.

❑ Classification of Intellectual Property:

[Please follow the book – Ras Masood]

❑ Criticism of IP law and the term itself:

Besides the advantages of IP and the IP law, these are not beyond any criticism. It has been criticized from a
different point of view, sometimes from the view of the term itself and sometimes from view of the law itself. The
criticism of IP can be headed out as follows:

1. An invention cannot be in nature a subject of property of economic value.

2. Protection of IP systematically promotes those who gain from the confusion.
3. It is also argued that the public interest is harmed by ever expansive monopolies.
4. Trends towards larger copyright protection raise the fair that it may someday be eternal.
5. Granting of patent for living organism has deprived developed and under developed countries for the
benefit.
6. Instead of viewing IP as one of many tools for the development and more focusing on the needs of
developing countries, it is being acted as an end itself.
7. The term itself is misleading in a sense that the term property referred is the rights, not the intellectual
work itself, which eliminates the traditional property presumption.
8. The word IP implies scarcity, which may not be applicable to ideas.
9. Laws itself treats these rights differently than those involving physical property, e.g., copyright piracy is
not punishable under theft.
10. These pertain to intellectual content (copyrights and patents) having limited terms, hence differ from
conventional property, whereas trademarks which have unlimited terms are merely signs and they lack of
intellectual content.

❑ Ways of protection:

“Intellectual property is the oil of the 21st century”, rightly says Mr. Mark Getty, the founder of Getty images.
Intellectual Property can literally cover everything from a production procedure to product launch schedules, a
trading secret such as a chemical formula, or a list of countries where the specific patents are licensed. The formal
concept of intellectual property (IP) according to the World Intellectual Property Organization (WIPO) is the

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“creations of the mind — inventions, literary and artistic works, symbols, names, images and designs used in
commerce.”

From brand name and logo to products, services, and processes that the company offers, intellectual property can
cover a wide range of topics. An organization is bound to face losses when these concepts are used without their
permission.

Almost every company has undeniably benefited from the internet, which allows goods, services, and marketing
messages to reach a large audience at a low cost - but it has also raised the risk of intellectual property
infringements. This ultimately makes the protection of Intellectual Property one of the most important things to do
in today’s business world.

Effective Ways to Protect Intellectual Property

The question is how shall we protect our Intellectual Property against possible violations? Following are the best
ways on how to protect intellectual property rights:

1. Apply for Trademarks, Patents, and Copyrights

Companies can protect their core management and R&D operations through intellectual property rights and
registrations, and also have a better bargaining position for cross-licensing and counterclaims. Intellectual property
rights and registrations also allow a corporation to obstruct competing goods, deter new entrants, and pave the
way for future market share via technological advancements.

Intellectual property rights come in a variety of forms, each one of which is a protective right to sue if a third party
infringes. A few of them are:

Copyrights
They are a type of intellectual property that protects original artistic expressions or works of authorship.
Copyrights may be licensed for text, artwork, drawings, or combinations of these objects produced by a
corporation.

Trademarks
They are brand names, symbols, or logos that are used to distinguish a company's products or services. A
trademark is a name, words, signature, text, emblem, painting, figure, inscription, photograph, or advertising that
is used to identify a group of objects, goods, and services as belonging to one owner or originating from one
source.
There are many advantages of trademark registration in the Bangladesh, including the protection of the brand and
the assurance that other firms cannot clone or imitate your trademark. The Ministry of Economy in the United
Arab Emirates is the government authority in charge of trademark registration, renewal, and cancellation.

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Patents
Patents are generally used to register inventions, things that are unique and not known to the general public—as
well as the methods by which they work. Technical information about the invention must be submitted to the
public through a patent application in order to obtain a patent.

2. Never Stop Innovating

Plagiarism will also be a problem in most industries. To some point, this explains why creativity makes such rapid
evolutionary leaps. Your rivals would never be able to catch up to you if you have endless innovation loops. That
would necessitate your business running lean and fast like an Olympic athlete.

3. Arrange Some Evidence While Innovating

There are also several instances where rivals learn about an invention from leaks and request for a patent citing it
as their own. You'll have to prove that you're the rightful owner as a consequence of it now. This can be
accomplished by maintaining a log of evidence that documents the evolution of intellectual property rights (for
example, dated and signed copies of drawings and drafts).

Intellectual Property is one of the most important intangible assets any company can have and there must be a
proper strategy to protect it.

4. Separate Teams
If at all feasible, the technical teams should be geographically divided, and it should be emphasized that neither of
them has access to the whole product. In order to breach the product's protection and sanctity, all of these teams
will have to work together to rob the whole product. Separation of duties is a fundamental principle of information
security that can aid in the protection of intellectual property.

5. Get the Intellectual Property Infringers Punished

Maintain patent and trademark security and enforce your rights by reporting violations and charging violators
where the business situation requires it.

6. Avoid Joint Ownership for Intellectual Property Rights

Make an effort to escape joint intellectual property rights. It is always beneficial for you to have control of your
rights. In the long run, joint ownership of such rights can cause confusion and legal issues threatening the security
of these assets, causing harm to all parties involved.

7. Create Awareness Among the Employees Regarding Intellectual Property Security

Awareness training will help fix and avoid possible Intellectual Property breaches, but only if it's tailored to the
assets that a certain group of workers must protect. Engineers and scientists pay close attention when you speak in
concrete words about what they've spent a lot of time working on. Humans, as is so often the case, are the

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weakest link of the defense chain. That is why an IP security strategy that relies solely on firewalls and copyrights
while ignoring employee knowledge and preparation is doomed to fail.

Most of the time, intellectual property (IP) gets leaked from a company through mistake or by incompetence.
Ascertain that the workers are mindful of the ways in which they can unintentionally reveal IP.

8. Get Exactly-Matching Domain Names

If possible, an exact-match domain name is one of the best intellectual property protection strategies for
trademarks and copyrights (that you already own). Though it can be a bit expensive, the long-term gains are
unrivaled.

9. Think Like Someone Who Would Violate Your IP Rights

What would a person do if he needed to spy on his own business? This will definitely make him consider
safeguarding contact lists, shredding papers in recycle bins, convening an internal council to approve the R&D
scientists' publications, and other strategies that might be useful for his business.

10. Make Sure the IP is Owned in a Way that Allows Further Development
The intellectual property rights should be registered in a way that allows to develop or modify them whenever
required. If there is find something new, when employed as an employee (for example, for a corporation or an
academic institution), the contract would almost definitely have a clause regarding it. In most cases, the employer
may get the first call on the invention, but there may be provisions in place to allow the employee to reclaim rights
if the invention is not exploited within a given amount of time-in some nations, this is enshrined in statute.

11. Draft Strong Non-Disclosure Agreements

It is also a wise decision to get some help from a legal agent during the drafting of non-disclosure legal provisions
which needs to be clear and concise. Always it requires to make sure that all other contracts which are used in a
company help protect IP. Jobs contracts, licenses, and distribution contracts are few examples.

12. Consult Intellectual Property Experts

By contacting a patent or trademark agent for help with searches and licensing to ensure that any intellectual
property which is created is adequately secured. Any money spent on intellectual property is money that can't be
spent on manufacturing, marketing, or other stuff, so consider why you're defending it. There are several
legitimate reasons: to prevent anyone from copying a person; to bring value to his business if he intends to sell it;
to sell or license to a third party; to keep it in his armory if he suspects, he will be sued and want to countersue.

13. Publish It Wherever Possible and with Attribution

Being the "first to apply" for a patent in Bangladesh is always the best and the safest way to defend your non-trade
secret IP. Other than this, another common way to ensure that Intellectual Property is recognized as his to publish

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and cite it extensively, always making sure that the company's name is credited to wherever it is listed. The more
people who see the intellectual property online, the more support his Patent can get.

14. Keep Idea A Secret Until A Patent Application has been filed
It has to make sure that a person should never share idea with anyone before he has protected the same. This is
because the other person might file for a patent before him and gain ownership rights over it. There is an old
maxim that says “a secret shared is not a secret anymore”. While a secret shared under a non-disclosure
agreement (NDA) (documents most people have heard about but probably never read), ought to stay secret,
discussing an invention under the umbrella of confidentiality is no substitute for being able to freely discuss or
publish an idea that is protected by a patent application.

15. Create A Comprehensive Strategy

Creating a strategy that covers all of the intellectual property, including all inventions and technologies, concepts,
trade secrets, original content, and domain names are required.

16. Enforcing Security Policies

Insiders or frustrated workers frequently compromise classified records, so organizations should place a high
priority on enforcing protection policies. Employees should be briefed about the company's intellectual property
protocols and practices, as well as the implications of their acts.

A data protection policy should specify which data must be secured and where it lives, as well as who has access to
it and how it must be protected. It should also specify how confidential data, such as IP, should be transported and
how it should be destroyed when no longer needed or necessary.

17. Protecting Intellectual Property with Strong Access Control

Manuscripts, creations, and all ideas should be kept in a secure location protected by an identity and access
management system. With compromised credentials accounting for 81 percent of breaches, it's critical to store
intellectual property on a system that employs adaptive authentication with risk analysis, or at the very least two-
factor authentication. Passwords are no longer an effective means of security.

18. Understand Where my IP Is, and Where It’s going

Although it's critical to protect my core IT structures, it's also critical to include other, less visible places where my
data could be stored or processed:

Printers, Copiers, and Scanners

Larger endpoint machines will hold the documents they handle, and they're usually linked to the network and
remote-control systems, making them particularly vulnerable to IP hackers. It has to be sure that there has the
best protocols and processes in order to ensure that all records are removed since they've been used, as well as
the right cybersecurity tools and network safeguards to deter unauthorized entry.

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Third-Party Sharing
IP is often exchanged with vendors, associates, or customers, making tracking and protecting it more complicated.
Work with legal specialists to ensure that my third-party arrangements specify how my IP can be protected and
that I have safeguards in order to ensure that those terms are followed.

File-Sharing and Cloud-based Software

It's critical to remain mindful of the applications and software MY staff is using, whether they're company-
managed or shadow IT that they've downloaded themselves, so I can avoid any unauthorized cloud access. I t has
to ensure that all company-approved applications are properly installed, protected, and up-to-date for added
security.

19. Keep It Quiet And Out Of Sight

Patenting or copyrighting works and processes, and actively defending them in court, are two traditional ways of
securing IP. Digital Rights Management schemes are used in modern techniques. Simply keeping information
confidential and limiting disclosure to the trade secrets that make up the IP, and designing the mechanism to keep
them hidden, is a now somewhat unusual but still successful method contrary to what we discussed previously.

Conclusion
As an outcome, it is strongly advised that companies develop and enforce a strategy for doing business in the UAE,
especially in terms of how trademark rights are treated. One of the most precious things you can possess is a
trademark. It is advised that you file your trademark at the time of establishing your company in the UAE to
protect and enforce your trademark rights. This will enable the organization to develop a long-term brand identity
capable of increasing its goodwill. Last but not least, businesses must still be on the lookout for and vigorously
protect registered trademark violations in the area.

MAHASINA AKTER BANNA

LLB-3rd Year
Jagannath University
Phone Number: +8801764204839
Email ID: mahasina.law@gmail.com

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