Intellectual resources and innovations are key business assets and support economic growth and development. Accordingly, it is important to understand which of these intellectual-based assets can be protected by intellectual property laws and how. For example, the most common legal mechanisms to protect one’s products and services are via copyright, trademark, and patent laws. Each of the three options protect different types of work and for different lengths of times. Some assets may even be protectable by a combination of copyright, trademark, and patent if the criteria for each option has been met. 

As well, copyright, trademark, and patents provide different types of exclusive rights for products and services. Copyright protects you from others reproducing all or a substantial part of your work without your permission. Trademarks protect you from others using a similar name, word, or image in association with their goods and services. Patents protect you from others manufacturing, using, or selling embodiments of your inventions without your permission. The three options are described in more detail below.

Copyright

Original works such as literary works (which include computer programs), musical compositions, dramatic works, cinematographic works and artistic works are all subject to copyright. Once a work is created, copyright arises automatically and the work will be protected for the author’s lifetime plus 50 years (or more) after death. Once protection has expired, the work will enter into the public domain. If the author is a resident of a country that is part of the Berne Convention, the copyright in the work is protected in all signatory countries. 

There is no need to formally register a copyright in most jurisdictions, but it is recommended. By registering a copyright, you are providing evidence of your ownership of the work, which is especially important where there is a known or likely actual infringement of your work. Whether registered or not, you may provide notice of your copyright through use of the copyright symbol, ©. Use of the copyright symbol is required in some jurisdictions but not others, in order to enforce your ownership of the work, and it is recommended to use the copyright symbol to deter others from infringing your work. 

Trademark

There are many ways to differentiate your products and services from those of others and many of these distinctive brand features (e.g., words, phrases, and logos) may be trademarked. Trademarks allow you to prevent another individual or business from using the same, or a similar, mark when selling goods or providing services. In other words, trademarks are used to protect your brand recognition and the reputation you have built in association with your goods and services.

Similar to copyright, you are not required to register your trademark, but it is strongly recommended. A registered trademark is listed publicly on a trademark registry, which is available to be searched and gives notice to others that the mark is in use and not available to be adopted and use by another business as a trademark. An unregistered mark, on the other hand, requires you to prove with evidence that the unregistered mark has sufficient reputation in a market to be a legally protectable trademark. Registered trademarks also give you the exclusive right to use the mark in association with the listed goods and services for ten years nationwide and can be renewed for further ten year periods. However, a trademark must continue to be used to be valid. If a trademark is unused for a long period of time, the trademark may be considered to be abandoned, and if registered, may be cancelled and removed from the Trademark Register. Registered trademarks are protected in the country or region they are registered in whereas common law or unregistered trademarks have protection that only extends in the area where they are well known such as a particular city or metropolitan area.

Patent

A patent may be obtained for new inventions, including improvements on existing products and processes. To apply for a patent, your invention must be novel, inventive (i.e,, not obvious to a person skilled in the particular technical field of the invention), and have utility (i.e., it must work for what is it supposed to do). For an improvement on an existing product or process, the improvement must not be able to be obvious or easily obtainable through trial and error by a person skilled in the particular technical field. With patents, the first person to file an application for a patent for an invention has entitlement over later applicants for the same invention. For this reason, should you wish to pursue patent protection, it is important to file a patent application as soon as possible so that no one else does before you.

Once patent application has been determined to meet the above requirements, a patent application is allowed and a patent is issued which provides its owner with exclusive patent rights for the balance of 20 years from the filing date of the application. Patents are only enforceable against others who infringe on the patent in the countries they have been granted and maintained in. 

When determining whether you should apply for copyright, trademark, or patent rights for your product or service, it is important to seek professional counsel with expertise in intellectual property law. An intellectual property lawyer or patent or trademark agent will be able to answer any questions you may have about the application process for copyrights, trademarks, and patents and the resultant intellectual property rights as well as prepare and file the documentation needed to file an application with the applicable intellectual property office.

By: Christopher Heer and Sarah Halkyard

Author:

Christopher Heer is the owner and founder of Heer Law. He is an intellectual property lawyer, registered patent agent, registered trademark agent, and is also certified as a specialist in intellectual property law (patent) by the Law Society of Ontario. He believes that intellectual property rights add tremendous value to businesses by enabling them to raise capital, build asset value, and grow faster under the protection that these exclusive rights give them.