ID® TRADEMARK ARTICLES AND PUBLICATIONS

INTELLECTUAL PROPERTY IN BUSINESS

By Isabelle Deshaies

INTELLECTUAL PROPERTY PROTECTION: A VITAL ASSET FOR THE COMPANY

A company's intellectual property should be protected by registering the same, where possible, or in using any other available proceedings to protect them. There are many reasons to register intellectual properties, some of them being a time and territorial exclusivity, which is a considerable business advantage on the competitors.

Registration of the intellectual properties increases the value of the company and facilitates the business relationship with partners, co-operators and buyers, who usually make sure that the intellectual property, for which they are ready to pay rights, is really the property of the person they are dealing with. Using intellectual properties of others, without legal right to do so, may have dire consequences and could even be fatal for the company.

PROTECTION PROCEEDINGS:

Each intellectual property has its own registration proceeding. Inventions are protectable as patents, under the Patent Act. The patent allows its owner to exclusively produce and commercialize the invention in a specific territory and for a limited period of time. There are important limitations as to the non-disclosure of the invention before filing the application and taxes must be paid to maintain that the patent is valid. Similar conditions and privileges are applicable to industrial designs. Registration is not mandatory to be recognized the ownership on a trade-mark. However, in case of legal proceedings, the owner must provide evidence of its ownership on the mark. This step is already accomplished when the mark is registered as it is a “prima facie” evidence of ownership.

Finally, copyrights exist as soon as the work is created and, unless exception, the work is protected for the whole life of the author and remains 50 years after his death. Registration is not mandatory in Canada and the various international treaties protect the Canadian copyright across the world. Use of the symbol © is not mandatory in Canada but recommended.

COMMERCIAL AND COMPETITIVE ADVANTAGES:

Besides legal benefits, recording intellectual properties present important commercial and competitive advantages. For example, by patenting an invention, the holder is being granted a competitive production and commercialization advantage on its competitors. This is why pharmaceutical companies patent their medicines, allowing them to benefit from the amounts invested in medical searches. Since intellectual properties may be licensed, mortgaged or sold, registration of same is more and more recognized and appreciated as a commercial tool. It allows the less fortunate inventor to sell and to negotiate business agreements with companies which will take care of the production and commercialisation of the product. Such agreements allow the inventor to obtain an equitable part for his work. Registration of intellectual properties increases the value of the company and demonstrates the seriousness of the leaders. Some business partners require that the trademark be registered even before beginning negotiations.

A non registered trademark is vulnerable to any potential attack as the ownership is not confirmed. As for the invention, no ownership and exclusivity is recognized until it is patented.

PLANNING THE PROTECTION:

Except for copyrights, registration proceedings last some years and are laborious. Appointing an agent to do the proceedings is essential and allows the owner to ensure that the registration is valid. It is recommended to begin the proceedings as soon as possible, particularly if the assets are intended to be part of business transactions. Therefore, protection of the intellectual properties should be part of the business plan and considered at the same level as any other asset of the company.

This article was written for the Canadian Opportunites Magazine, December 2008 – January 2009

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