Author Topic: Modern Classification of Intellectual Property Rights  (Read 109 times)

Offline Nahid Afreen

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Modern Classification of Intellectual Property Rights
« on: August 10, 2018, 02:47:53 AM »
I. Primary Rights
1 Patent
A patent is a form of right granted by the government to an inventor, 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 fulfil three main requirements: it has to be new, not obvious and there needs to be an industrial applicability. 
Patented invention can normally be exploited with the authorization of the owner of the patent. (Ginarte, et al. 1997).
Patents are a form of intellectual property. The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a granted patent application must include one or more claims that define the invention. A patent may include many claims, each of which defines a specific property right. 

2.  (i) Trademarks
 A trademark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity trademarks are also being displayed on company buildings.
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound (like jingles). A trademark cannot be offensive.
A trademark may be designated by the following symbols:
a.  TM (the "trademark symbol", which is the letters "TM" in subscript, for an unregistered   trademark, a mark used to promote or brand goods)
b.  ® (the letter "R" surrounded by a circle, for a registered trademark)

(ii) Service marks
A service mark is a trademark used in the United States and several other countries to identify a service rather than a product. 
A service mark differs from a trademark in that the mark is used on the advertising of the service rather than on the packaging or delivery of the service, since there is generally no "package" to place the mark on, which is the practice for trademarks. For example, a private carrier can paint its service mark on its vehicles, such as on planes or buses. Personal service providers can place their service marks on their delivery vehicles, such as on the trucks of plumbers or on moving vans.
However, if the service deals with communications, it is possible to use a service mark consisting of a sound (a sound trademark) in the process of delivering the service. This has been done in the case of AT&T, which uses a tone sound followed by a woman speaking the company's name to identify its long distance service; MGM, which uses the sound of a lion's roar; and RKO, which uses a Morse code signal for their motion pictures
A service mark may be designated by the following symbols:
a.  SM (the "service mark symbol", which is the letters "SM" in superscript, for an  unregistered service mark, a mark used to promote or brand services)
b.    ® (the letter "R" surrounded by a circle, for a registered service mark)

(iii) Trade Secret
A trade secret is a formula  practice  process, design  instrument, pattern, commercial method, or compilation of information which is not generally known or reasonably ascertainable by others, and by which a business can obtain an economic advantage over competitors or customers.
The precise language by which a trade secret is defined varies by jurisdiction (as do the particular types of information that are subject to trade secret protection). However, there are three factors that, although subject to differing interpretations, are common to all such definitions,  a trade secret is information that:
a.   Is not generally known to the public
b. Confers some sort of economic benefit on its holder (where this benefit must      derive specifically from its not being publicly known, not just from the value of the information itself)
c.   Is the subject of reasonable efforts to maintain its secrecy.
Trade secrets are an important, but an invisible component of a company's intellectual property (IP). Their contribution to a company's value, as seen as its market capitalization, can be major.  Being invisible, that contribution is hard to measure. Patents are a visible contribution, but delayed, and unsuitable for internal innovations. Having an internal scoreboard provides insight into the cost of risks of employees leaving to serve or start competitors.
3. Copyright
Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights for its use and distribution. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".  This is usually only for a limited time. The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use.
Copyright is a property right that subsists in certain specified types of works as provided for by the Copyright Ordinance, 1962. The owner of the copyright subsisting in a works has the exclusive right to do certain acts in relation to the work such as making a copy, broadcasting or selling copies to the public. These are examples of the acts restricted by copyright. The owners of the copyright can control the exploitation of the work, for example by making or selling copies to the public or by granting permission to another to do this in return for a payment. If a person performs one of the acts restricted by copyright without the permission or license of the copyright owner, the latter can sue for infringement of his copyright and obtain remedies, for example damages and an injunction.
A copyright may be designated by the following symbols:
a. © (the "copyright symbol", which  is a circled capital letter "C", is the symbol used in copyright notices for works other than sound recordings)
b. ℗  (the "sound recording copyright symbol", which is a circled capital letter "P", is the symbol used in copyright notices for sound recordings)

4. Geographical Indication (GI)
A geographical indication (GI) is a name or sign used on goods that have a specific geographical location or origin (e.g. a town, region, or country) and possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil. Whether a sign is recognized as a geographical indication is a matter of national law. Geographical indications may be used for a wide variety of products, whether natural, agricultural or manufactured.
An appellation of origin is a special kind of geographical indication. It generally consists of a geographical name or a traditional designation used on products which have a specific quality or characteristics that are essentially due to the geographical environment in which they are produced.  The concept of a geographical indication encompasses appellations of origin.

II. Sui generis rights (unique rights)
(Meaning of Sui generis: It is a Latin phrase, meaning "of its (his, her, or their) own kind, in a class by itself, unique".)

1. Authors' Rights
Authors’ rights are a part of copyright law. The term is a direct translation of the French term droit d’auteur (also German Urheberrecht), and is generally used in relation to the copyright laws of civil law countries and in European Union law. “Author” is used in a very wide sense, and includes composers, artists, sculptors and even architects: in general, the author is the person whose creativity led to the protected work being created, although the exact definition varies from country to country.

2. Database Rights
A  database right is considered to be a property right, comparable to but distinct from copyright, that exists to recognize the investment that is made in compiling a database, even when this does not involve the 'creative' aspect that is reflected by copyright.

3. Indigenous Intellectual Property
Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' rights to protect their specific cultural knowledge and intellectual property.

4. Industrial Design Rights
An industrial design right is an intellectual property right that 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.

5. Integrated Circuit Layout Design Protection
Layout designs (topographies) of integrated circuits are a field in the protection of intellectual property.
In United States intellectual property law, a "mask work" is a two or three-dimensional layout or topography of an integrated circuit (IC or "chip"), i.e. the arrangement on a chip of semiconductor devices such as transistors and passive electronic components such as resistors and interconnections. The layout is called a mask work because, in photolithographic processes, the multiple etched layers within actual ICs are each created using a mask, called the photomask, to permit or block the light at specific locations, sometimes for hundreds of chips on a wafer simultaneously.

6. Moral Rights
Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work bars the work from alteration, distortion, or mutilation. Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.
7. Plant Breeders' Rights (PBR)
Improved plant varieties and good quality seeds are essential for safe, reliable and efficient crop and food production.
As an incentive for plant breeding, breeders of any species of plant - whether agricultural, horticultural or ornamental - can apply for plant breeders’ rights (PBR). 
8. Related Rights
Related rights is a term in copyright law, used in opposition to the term "authors' rights". The term neighbouring rights is exactly equivalent, and is a more literal translation of the original French droits voisins. Related rights in civil law are similar to authors' rights, but are not connected with the work's actual author. There is no single definition of related rights, which vary much more widely in scope between different countries than authors' rights.

9. Supplementary Protection Certificate
In the European Economic Area (European Union member countries, Iceland, Liechtenstein and Norway), a supplementary protection certificate (SPC) is a sui generis intellectual property (IP) right that extends the duration of certain rights associated with a patent. It enters into force after expiry of a patent upon which it is based. This type of right is available for various regulated, biologically active agents, namely human or veterinary medicaments and plant protection products (e.g. insecticides, and herbicides). Supplementary protection certificates were introduced to encourage innovation by compensating for the long time needed to obtain regulatory approval of these products (i.e. authorization to put these products on the market).

10. Utility Model
A utility model is an intellectual property right to protect inventions. This right is available in a number of national statutes, as described below. It is very similar to the patent, but usually has a shorter term (often 6 to 15 years) and less stringent patent ability requirements.

Source: My book on Intellectual Property Rights and Laws

Nahid Afreen
Assistant Professor
Law, DIU
Nahid Afreen
Assistant Professor
Department of Law (FHSS)
Daffodil International University,
Advocate, Supreme Court of Bangladesh

Offline Mahmud Arif

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Re: Modern Classification of Intellectual Property Rights
« Reply #1 on: September 09, 2018, 10:38:37 AM »
Inventions cannot be judged on patent parameters, but patents have the ability to take inventions very far, nice writing Madam.
Arif Mahmud
Lecturer (Part time)
Department of Law
Daffodil International University
Contact: +8801682036747

Offline Nahid Afreen

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Re: Modern Classification of Intellectual Property Rights
« Reply #2 on: November 06, 2018, 11:00:58 PM »
Thank you, Sir. I am overwhelmed that you have gone through it with patience. I appreciate your remarks.  :)
Nahid Afreen
Assistant Professor
Department of Law (FHSS)
Daffodil International University,
Advocate, Supreme Court of Bangladesh