Intellectual Property Protection - Essay Example

Introduction Intellectual property law has evolved significantly over the past 50 years (Cook, . This is due to the fact that most organisations see business symbols as a form of asset that is linked to the goodwill of the organisation (Cook, 2012). A corporate entity might typically have a mix of different intellectual property arrangements to protect its brands, business symbols and intellectual portfolio (Yu, 2007). This paper examines and evaluates the various options available to an organisation in the protection of its intellectual properties. To this end, the paper will explore the following objectives: 1. A critique of five different approaches to the registration of a firms intellectual property; 2. An evaluation of the requirements for the registration of each of the intellectual property and its related issues; 3. An assessment of the strength and weaknesses of each of the approaches in relation to the firms interests; 4. Evaluation of some organisational approaches to intellectual property. The scope of the work will cover the conventions in design management and intellectual property rules and processes. In addition to this, relevant elements of international intellectual property law as regulated by the key stakeholders like the World Intellectual Property Organization (WIPO) will be integrated into the study to form the parameters of the discussion Patents Patents are rights to new or useful ideas (Motro, 2012). Thus, if a designer creates a new idea and a new concept, that individual can seek to register it as a patent. A patent is used for inventions and there is the individual who registers a patent has the general authority or license to confer rights for replication of the design or concept (Cannady, 2010). The fundamental requirement for a patent registration is that the idea being patented by a designer is new and useful (Dworkin and Taylor, 2011). Thus, in the world of design, as long as a design is useful and new, a designer can register it. The idea must be one that does not exist and it can be attained if a design can be applied in a scientific way or manner. The advantage of patents over other forms of registration of intellectual property is that it excludes others (Waller, 2011). This protects the legal rights and limits replications through licensing opportunity which brings the inventor royalties (Yu, 2007). This can be easily extended to different nations around the world (Yu, 2007). The disadvantage of patents on the other hand is that it lasts for only 20 y ears (Waller, 2011). It is expensive to register a patent and the requirements are extremely complicated. There is also a long time requirement for people registering patents. Trademarks Another approach to the registration of a design is to use trademarks. Trademarks are however different from patents and might not be applicable to some forms of designs (Bowen, 1994). The essential role of trademarks is that it gives a commercial identification and an exclusive right to the owner of the registered trademark. The trademark is used to collectively mark and separate the products of a given entity from what other entities produce. This might be appropriate for some basic designs that an organisation puts out for consumers in the markets and not be really appropriate for a new or improved design of a given product (Loveridge, 1990). The primary advantage of a trademark is that it helps a designer or a firm that designs products to prevent their ideas or concepts from being used or abused by their competitors in the industry (Bowen, 1994). This is because the trademark makes a given product distinct and this makes it impossible for competitors to copy it without facing legal issues and legal consequences. Inherent in this advantage is the fact that trademarks control the ability of others to replicate a given business or trading concept. This advantage transforms a trademark to an asset for a given designer or design company. The main disadvantage is that trademarks must be registered and renewed within short intervals usually 5 – 6 years. If a firm does not register a trademark on time, they could lose it. Secondly, trademark is seen as a soft form of protecting intellectual property and hence, design concepts. This is because they only protect the product itself. Thus, unlike a patent that has a harder control of IP rights, other competing firms and entities can copy the business concept and somewhat manage to re-register a different trademark on a similar product. This weakens the ability of a trademark to protect the intellectual property right. Trade Secrets A trade secret is a legally recognised approach for the prevention of the leakage of a given trade secret (Aleksei et al, 2010). The famous example of companies that keep trade secrets are Coca Cola and KFC, which are reputed to be entities that keep unique ingredients and recipes for their products. This concept and approach can be applied to the design environment and the design sector through various activities and various processes that could limit the circulation of trade secrets and design concepts and processes. Trade secrets are protected by keeping a limited number of hard copies of the design concept or idea (Waller, 2011). This will be kept in a secured location with each page stamped “confidential” (Waller, 2011). There must also be a restricted internal access and granting access to the concept and the documents it is written on. Anyone who gains access to the document will need to sign a confidentiality agreement before access can be granted. The advantage of trade secret as a system of protecting an intellectual property in the design industry is that it is indefinite and as long as the secret is not leaked, this process can go on and on. Also, it is cheap and apart from securing the documents and monitoring confidentiality agreements, the trade secret concept is very cost effective. Thirdly, there is no requirement for novelty as the case may be for patents. The downside of trade secret as an IP protection system is that it could be patented if it is leaked to third parties and anyone can practice it. This makes it a risky method of protecting a design that is used by an organisation or individual. Copyright A copyright is a general mark that differentiates a business from another business (Burge, 2009). It includes different marks that are used to mark a given product or service from other services. It is used to protect and separate a brand from other brands in a way that prevents its re-engineering and replication. In the area of design, a copyright can prove to be a major legal tool that can prevent the replication and copying of a given design put onto the market (Baldwin, 2012). This is because a copyright effectively prevents people from copying and replicating design ideas. The second advantage of copyrights is that it protects a business asset and ensures that earning and revenue generation is stabilised (Gutterman, 2009). The disadvantage is that where there are issues with a given brand of a company, copyrights ensure that the negative image is connected to the entity (Muller et al, 2010). This is because it creates a conceptual connection and linkage between the external world and the products or services of an entity (Simmon, 2013). Thus, any failures and issues with a given brand is given an image that enables third parties to connect the firm with the failures. Design Rights Design rights are available for unregistered designs in the United Kingdom (Gerhardt and McClanaham, 2013). This is in contrast with a registered design which is discussed below. Design rights involve an automatic right that provides protection for an internal or external shape or configuration of an original design (Gerhardt and McClanaham, 2013). Design rights are unregistered design rights that give a person 10 years from first marketing or 15 years after the making of the design (OConnell, 2010). In the last five years of the unregistered design right, the owner can license it and this protects the appearance and style of the design (Law Commission, 2012). The obvious advantage is that it is cheap since the owner of the design does not necessarily need to register it (Shippery, 2013). And it can be renewed and registered after the time lapses. However, it could open up doors to long disputes that can be expensive for the owner of the design in question. Registered Design As the name suggests, a registered design provides a conscious approach for the registration of a given design in law. Registered design prevents others fro using or applying a design without permission (Sople, 2012). This involves protection for the visual appearance of the product, in other words, there can be no copying of the visual appearance, but not the feel or formation of the design (Alikhan and Mashelkar, 2012). Registered design brings exclusive rights and prevents the presentation of identical designs (Lambert, 2012). This controls internal design and controls market replication (Lambert, 2012). “A registered right confers on its proprietor exclusive protection for an invention. Generally, as with a patent, to be protected by an utility model, an invention must be new, involve an inventive step and be capable of industrial application” (Cottier and Venon, 2010, p199). Registered design provides medium term protection of between 6 – 10 years (Hovenkamp et al, 2008). This include the presentation of a petty patent and minor improvements that could enhance the use of a given product or service (International Schumpeter Society, 2010). This include the legal authority to prevent unauthorised usage. However, registered design is less stringent than a patent (WIPO, 2010). This is because it does not have high standard and requirements as per patents and can be used to register and cover innovations and improvements on an already invented concept. On the other side, it is much easier to grant but cannot be renewd (WIPO, 2010). Practical Consideration in the Application of Intellectual Property Rules There are various elements that a patent owner or patent proprietor must be sensitive to. These are practical matters and considerations that ought to be taken seriously and are essential for the attainment of proper intellectual property registration and intellectual property management. Non-Disclosure Agreements (NDA) There is the need for a high degree of confidentiality to be attained through the process of siging and presenting non-disclosure agreements. The non-disclosure agreement is signed and presented to all third parties in the intellectual property registration and management process (ODonnell et al, 2008). This is because it prevents them from abusing or misusing certain elements and aspects of the intellectual property (Lowe, 2013). In other words, it limits the use of intellectual property to fair use that is necessary to attain the elements and aspects of the contract in question. Thus, third parties who are brought into the use of a given intellectual property are limited through non-disclosure agreements (Valkokari, 2012). This must be crafted to provide clear and apparent limitations from the use and abuse of the intellectual property rights that are being regulated (Valkokari, 2012). They are particularly essential for the protection of trade secrets and other confidential components of intellectual properties. Non-Disclosure Agreements are informal assets and legal tools (Bullen et al, 2012). They do not actually earn anything but are used to protect assets and products of a firm from being misused by privileged persons. Technological Concerns (Data Loss Prevention) Technological concerns are major issues relating to the potential loss of intellectual property. This is because most intellectual property rights are either stored on or held on some kind of electronic platform or system. Thus, there is the need for important steps to be taken by an intellectual property owner to prevent the loss of their intellectual assets. Reijole (2013) recommends the use of a risk analysis to evaluate technological concerns in order to deal with them appropriately in the right way and manner. The risks must cover the scope of outsourcing and loss of data (Reijole, 2013). Thus, it is recommended to assess the possible risks and potential of people misusing a registered intellectual property. This include the identification of risks related to malicious insiders, malicious outsiders and targeted internal parties in the organisation (Reijole, 2013). In order to do this, there is the need to define the data vulnerabilities and vulnerabilities in the hardware and the software being used on the technological platform used by the organisation. In the legal sense, Bryer et al (2011) identify that the intellectual property owner has a duty to preserve evidence. And this is usually in the form of hard copies of the intellectual rights that an organisation has or owns. This will be important in legal disputes and disagreements that relate to court cases and court actions. This is because in most cases, there is the need to present evidence where there are disputes. In such situations, the hard copy of a given intellectual property will be necessary and essential in dealing with the requirements and expectations of the courts. Procedure for Intellectual Property Disputes Intellectual property disputes have their roots in civil law, rather than criminal law (Varcia, 2010). This is because it involves offences between two different people in the society. However, criminal actions could be taken where there are issues relating to theft where punitive sanctions could be placed on a guilty party (Varcia, 2010). Being a civil system, the traditional route for dealing with issues relating to intellectual property in the design set up can be carried out through litigation. However, due to major changes in the civil law systems has led to the use of alternative dispute resolutions. The internationalisation of the intellectual property law framework has also created a system whereby cases ought to be dealt with from an international perspective. The World Trade Organization (WTO) has led a system of arbitration which uses the Trade-Related Intellectual Property Rights (TRIPs) rules that guide the conduct of arbitrators. This creates a system where a third party is called on to listen to the case of each party and come up with a solution within 28 days. However, if the results are not right, an aggrieved party can go to court and seek redress. In most cases, an IP owner can demand an injunction or order for specific performance (Maskus, 2008). These orders will prevent replication or further abuse of an intellectual property. With this done, an aggrieved party could sue for damages to compensate for the abuse of his legal rights. Conclusion Intellectual property is an important asset for people who design products for various purposes. Patenting is the most central and most valuable approach for registering intellectual properties. However, patents are only reserved for useful and novel products. Thus, other inventions that do not qualify as patents can be registered as registered design or unregistered designs. They all come with some limitations relating to their time span and their scope. Copyrights and trademarks are appropriates for protecting brands that are being produced directly for consumers. Trade secrets are also appropriate for ideas but they could be leaked. In the practical sense, there is the need for intellectual property rights to be granted to various stakeholders to ensure that intellectual property rights of an IP owner are protected. This can be regulated through non-disclosure agreements which prevents the abuse of information by third parties. It must be carefully drafted to avoid abuse. Secondly, there is the need for a firm to use a proactive approach to institute a risk management system to prevent technological abuse and misuse of information. In the field of intellectual property dispute, there is a shift from litigation to alternative dispute resolution. An aggrieved party who has an issue with an entity it has a contract with will typically use arbitration. However, where the abuse is in rem, the aggrieved party will typically launch a litigation. References Aleksei, F., Tonis, M. and Heiki, P. (2010) “Trade Secrets in the Internatioanl Property Structures of Europe” Review of Central and Eastern European Law 35(4) pp315 – 339 Alikhan, S. E. and Mashelkar, R. A. (2012) Intellectual Property and Competitive Strategies in the 21st Century Amsterdam: Kluwer Law International Baldwin, V. A. (2012) Patent and Trademark Information London: Routledge Bowen, H. K. 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