Intellectual property

What is intellectual property?

Intellectual property (IP) refers to creations such as inventions, literary and artistic works, designs and symbols, and the names and images used by businesses.

  • It is important for businesses to protect their IP through intellectual property rights (IPRs).
  • IPRs protect inventors, creators and businesses from others unfairly profiting from their creations or inventions.
  • IPRs give companies the chance to recover the money they have invested in developing a product or their companies reputation – when a company’s ideas, brands or products are pirated and counterfeited, it reduces their abilities to grow and to employ people.
  • IPRs provide guarantees to consumers, through trademarks and geographical indications that identify the place of creation and can act as quality indicators.
  • Counterfeit products can endanger the safety or health of citizens, for example in the case of vehicle spare parts or medicines.

Intellectual property rights provide legal protection for your business.

The main types of intellectual property rights are described below.

Patents

Patents protect an invention or a technical product or process. It is illegal for others to make, use, sell, lease or supply the patented article or process. However, the patent holder can give others permission to do so by granting a patent licence. A patent licence is an agreement between a patent holder and someone who wants to use the patent. It usually requires a payment from the person taking the licence.

Copyright

Copyright protects works of literature, scholarship, science and art. This includes books and articles, films, paintings, music, games, photographs and software. It is important for businesses to remember that copyright exists automatically. This means that there is no need to register or apply for it. For example, anyone who makes a drawing automatically owns the copyright in it.

Neighbouring or related rights

In addition to copyright, there are ‘neighbouring rights’ that are sometimes called ‘related rights’. Neighbouring rights are the public performance royalties due when a sound recording of a copyright holder is performed in public. Each song has two basic types of copyright attached to it: one for the composition of the song and one for the recording of the song. The composition copyright pays the songwriter and publisher, while the sound recording copyright pays the artist who recorded the song and the record company. Like copyright, these rights are automatic.

Trademarks

Your business can use a trademark to distinguish your products or services from those of your competitors. Trademark rights protect the names of products or services. They also protect a product’s logo and the design of its packaging. Your business must register your trademark if you want to protect it.

Design rights

Design rights protect the appearance of two- or three-dimensional products. This includes wallpaper patterns, textiles and the design of household items such as alarm clocks, toys and chairs. The design has to be new and original. In order to obtain such protection, a design must, in principle, first be registered. In some cases, however, designs are automatically protected in the EU without prior registration.

Geographical Indications

A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation attributable to that origin.

For example, Darjeeling tea. In the region where the Darjeeling GI is protected, producers of Darjeeling tea can prohibit the use of the term ‘Darjeeling’ for tea not grown in their tea gardens or not produced according to the standards set out in the code of practice for the GI.

GIs are typically used for agricultural products, foods, wines and spirits, handicrafts, and industrial products. A GI sign must identify a product as coming from a particular place. Click here for more information.

Plant breeders’ rights

Plant breeders can invoke plant breeders’ rights to protect their new plant varieties. In order to qualify for these exclusive rights, a variety must be new, distinct, uniform and stable. These new varieties are often the result of long and costly breeding processes.

Plant breeders’ rights give the breeder exclusive control over the propagating material (which includes seeds, plant cuttings and divisions, and plant tissue culture) and harvested material (which includes cut flowers, fruits, and foliage) of a new variety for a number of years.

With these rights, the breeder can choose to become the exclusive marketer of the variety, or to license the variety to others.

Many countries have plant breeders’ rights through membership of the International Convention for the Protection of New Varieties of Plants and the WTO Agreement Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Database rights

Databases, which are collections of ordered data, can be protected by database rights. For a company, building up such a database often requires a significant investment of time and money. A database owner has the right to prevent substantial parts of his database from being copied.

Business and IP in a nutshell

Whatever your business makes or the service it provides, you are likely to use and create intellectual property.

For example:

  • Most businesses have a trade name or one or more trademarks and should consider protecting them.
  • Almost all businesses have valuable confidential business information, such as customer databases or sales strategies, which they may wish to protect.
  • Many businesses also develop original creative designs, or invent or improve products or services – businesses may also produce and distribute copyrighted works.

Your business should consider how best to use the IP system to your advantage.

  • Your business should consider what is needed to protect, manage and enforce your intellectual property and trade secrets in order to get the best possible commercial results from your assets.
  • Some companies may find the registration of IP rights to be expensive, particularly if they are a small business.
  • But remember that certain IP rights can be enjoyed without any formal procedure and without paying any official fees – this is the case with copyright and unregistered designs.

Your business may be using intellectual property that belongs to others. In suchcases, you can acquire the right to use it by taking a licence – this avoids a dispute and the costly litigation that can follow.

How to enforce your IPR

If you believe that your intellectual property rights have been infringed, you should consider seeking expert, possibly legal advice.

  • You may be advised to send a formal letter – known as a cease and desist letter – to the alleged infringer of your IPR.
  • This should inform them that there may be a conflict between the your company’s IP rights and their business activities – it should specify the exact conflict and may also suggest a possible solution to the problem.
  • If the infringer is unintentionally infringing your rights, a cease and desist letter may stop the breach or allow you to negotiate a licence agreement without going to court.
  • For intentional IPR infringements, such as counterfeiting and piracy, you may be advised to seek the assistance of law enforcement authorities.

If you think it is in your interest to avoid litigation, there are also alternative dispute resolution mechanisms, such as arbitration and mediation, that you could consider.

What is the link between trade and IPR?

Companies today do more than just ship goods abroad. Innovation, creativity and branding add much more value to their trade than in the past. Your company’s knowledge of new technologies, ideas, methods and techniques is an important asset.

By protecting business ideas with effective intellectual property rights, governments encourage business innovation and creativity because it can grow your business and create jobs.

Many EU companies operate abroad. As their intellectual property becomes increasingly important in international trade, the different levels of protection and enforcement of IPR around the world can create tensions.

Countries that have a lot of intellectual property abroad try to defend their domestic business interests by asking other governments to provide effective rules or enforcement of IPR rules in their countries.

Agreeing new trade rules for IPR is an important way to provide more certainty and predictability and also to resolve IPR disputes abroad more systematically.

There are several international IPR agreements, including:

  • The World Intellectual Property Organisation (WIPO):
    • WIPO is a United Nations agency that provides intellectual property (IP) services, policy, information and cooperation, and aims to develop a balanced and effective international IP system that enables innovation and creativity for the benefit of all.
    • Find out more about WIPO’s international IPR treaties.

  • The European Union Intellectual Property Office (EUIPO):

    • EUIPO is the European Union (EU) agency responsible for managing the EU trade marks (EUTMs), the Registered Community design (RCDs), the Geographical Indications (GIs) for craft and industrial products and the European and international cooperation in the field of intellectual property (IP), as well as the European Observatory on Infringements of Intellectual Property Rights.
    • EU trade marks (EUTMs)
    • Registered Community design (RCDs)
    • Geographical Indications (GIs)
    • Financial support to SMEs: The Ideas Powered for business SME Fund is a grant scheme designed to help EU-based small and medium-sized enterprises (SMEs) protect their intellectual property (IP) rights.
    • IP Scan online tool: self-assessment tool to self-evaluate the correct usage of IP rights.
    • Free IP Support (IP Pro bono): apply for Free IP Support from IP professionals in your language.
    • Alternative Dispute Resolution (ADR): The EUIPO Mediation Centre provides alternative dispute resolution (ADR) services to all parties involved in intellectual property disputes pending before the EUIPO.

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