08 Oct

Intellectual Property 101: How to Protect Your Business

By Axis Marketing on

 

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Understanding the complexities of intellectual property is key for technology companies because a majority of their market position is based on innovations and expertise. Intellectual property refers to the intangible assets of a business, including patents, copyrights, trademarks and trade secrets. These assets are often the most valuable and least understood assets of a corporation.

Patents

What is a patent?
A patent is a legal protection granted by the federal government to an inventor to encourage progress and prevent others from benefiting from the invention. Patents cover inventions new to the marketplace or improvements on existing inventions.

There are three basic criterion an invention must meet in order to be patentable in Canada: novelty, utility and ingenuity. An invention is novel if it is the first of its kind in the world. Utility is established if an invention has a useful and functional purpose. Lastly, an invention’s ingenuity is demonstrated if an invention represents something new to an industry that is not already available and readily apparent to someone skilled in that industry.

What does patent protection provide?
Patent protection involves the right to exclude others from making, using or selling anything that would fall under the claims of the issued patent. Canadian patents have a maximum life of 20 years from the date the patent application is filed.

What factors are considered when determining whether a patent has been infringed?
Determining whether a patent has been infringed entails the court examining the claims of the patent and comparing them to the invention or evaluating the validity of the patent. This may be more complex in situations where the claims terms are unclear or ambiguous. The court can determine that infringement exists even if the invention isn’t identical to the original. If the device largely performs the same function in the same way to produce substantially identical results, a court may find infringement.

What are my rights if someone infringes my patent?
You may file a lawsuit for damages in the appropriate court to enforce your patent against an infringer. If you are successful, there are many possible outcomes. Courts have the authority to compensate the patent holder for losses associated with the infringement.

Copyrights

What is a copyright?
A copyright is the legal protection granted by the government to an author. In the case of works created by an employee during the course of his or her job, the copyright would belong to the employer.

What can be protected by a copyright?

The Copyright Act of Canada sets types of creative works to be protected. A non-exhaustive list of material that may be protected under copyright includes:

  • Books, magazines, advertising copy and computer programs
  • Songs
  • Dramatic works, including any accompanying music
  • Paintings and designs
  • Motion pictures
  • Sound recordings (CD, cassette, digital audio tapes, MP3 files)
  • Architectural works

The Copyright Act of Canada provides immediate protection for creative works. As soon as works are written down or recorded, they are immediately copyright-protected.  The copyright protection lasts until the author’s death and for an additional 50 years after the date of the author’s death.

What does copyright protection provide?
Copyright ownership grants the author or owner of the work the sole and exclusive right to reproduce the work in any form. These rights can be limited by some doctrines, like fair dealing.

What factors are considered when determining whether a copyright has been infringed?
A copyright can be infringed by violating any of the rights granted: reproduction, modification, publication, performance and public display of the work.

However, “fair dealing” is allowed without the author’s permission if an individual uses a copyrighted work or a portion of copyrighted work for personal use, or for limited instances of news reporting, criticism or review if certain requirements are met.

What are my rights if someone infringes my copyright?
A copyright under the Copyright Act of Canada gives you the right to receive civil remedies, including court costs. Additionally, an infringer may be subject to criminal prosecution. If convicted of copyright infringement, an individual may face criminal penalties of twenty-five thousand dollars or imprisonment up to six months, or both.

Trademarks

What is a trademark?
A trademark is a mark that is used by a person for the purpose of distinguishing wares or services manufactured, sold, leased, hired, or otherwise entered into commerce from others in the marketplace. Canadian federal law and common law allows for the protection of trademarks.

What does trademark protection provide?
The scope of the protection can vary widely, depending on the strength and fame of a mark. For instance, many brand names are famous marks that are very strong. The length of time that a mark can be protected is indefinite because it is based upon use—registered marks in Canada have an initial term of 15 years. A mark may be renewed in successive 15-year increments as long as the mark is still in use.

What factors are considered when determining whether a trademark has been infringed?
Whether a trademark has been infringed is most often dependent upon whether a likelihood of confusion has been found. In determining whether there is a likelihood of confusion, courts generally look at factors like the inherent distinctiveness of the marks, the extent to which the marks are known, the time the marks have been in use, the nature of the goods or services associated with the marks and the degree of resemblance between the marks.

What are my rights if someone infringes my federally registered trademark?
Remedies are available for trademark infringement under both federal law and common law. After a finding of infringement, damages can include, but are not limited to, a temporary or permanent injunction, damages and legal costs.

Trade Secrets

What is a trade secret?
A trade secret is any information that is or may be used in business that is not generally common knowledge in that trade or business.  The information must also have economic value because it is not common knowledge in the trade or business and the holder of the information must make efforts to keep it from becoming generally known.

What factors are considered when determining whether a trade secret has been misappropriated?
The owner of the trade secret must prove that a misappropriator owed an express or implied duty of confidentiality or some other fiduciary duty to the owner, or that the misappropriator obtained the trade secret through some improper means.

What are my rights if someone misappropriates my trade secret?
A lawsuit may be filed for trade secret infringement, depending upon the circumstances. Individuals may be subject to injunctions, may be ordered to pay damages and will be subject to any other remedy the court finds appropriate if convicted.

Are there applicable common laws?
Quebec also has its own trade secret laws which may need to be considered when developing your policy.

Protect Your Business

Patents, copyrights, trademarks and trade secrets may be integral parts of your business. It is vital that you understand the laws associated with these concepts to protect your intellectual property. You also need to ensure that your behaviour does not infringe on someone else’s intellectual property. This piece is not exhaustive and should be read as an overview. For more information, consult legal counsel.

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