Continuing from his first blog post, patent attorney Michael McLaughlin gives us a lowdown on patents, trademarks and copyright and why it is important to know the difference.
By Michael McLaughlin
30 Apr 2009
Our last posting covered the fact there are various types of intellectual property (IP) rights and that there are differences between them. We touched, briefly, on patents and will now look at some other important types of IP rights.
Trademarks
If you have a trading name, a product name, a word or symbol used in a business or in some instances even a sound or a shape which is distinctive of your goods or services, then you may be able to obtain a registered trademark in respect of it. This is also a monopoly right so it allows you to stop third parties from using the same or similar mark in relation to the same or similar goods or services whether or not they copied you. Effectively, a trademark protects the association of the mark with the source of the product.
Trademark protection is available around the world and there are various international systems including the Madrid Protocol which Singapore has signed up to. But this system may be of limited benefit to companies in Singapore and Southeast Asia because not many other countries in this region have signed up to it.
Nothing is forever, right? Well, perhaps not. One of the great benefits of a trademark is that it can, theoretically, last forever as long as you renew it (usually in blocks of 10 years), so it can be a very powerful right.
In order to obtain a trademark registration, you have to go through an examination procedure. In many countries this means the trademark is considered for inherent distinctiveness (that is, whether it is capable of distinguishing your goods from another vendor’s) or whether it is too similar to an earlier registered trademark. If you do not register your trademark you may still have some protection for it under passing off if someone else is ‘passing off’ their goods as yours, but the coverage for this varies from country to country. In a passing off action, you will often have to prove that you have developed a reputation in relation to the trademark as evidence that you have the exclusive right to it over an infringer.
Registered designs
Design protection extends to the appearance of an article. A registered design is also a monopoly right and will last for up to 15 years in Singapore, and longer in other countries. It is usually necessary to renew the registered design in blocks of five years.
A registered design is infringed by a product with similar appearance (but not necessarily the underlying function) of an article whether or not there is copying. Although registered designs can be very useful, in practice it is often not necessary to change the appearance of an article very much to avoid infringement. Registered designs are also usually pretty straightforward and inexpensive to obtain.
This type of protection is also available internationally, under the Hague Agreement. Singapore has signed up to this, but no other countries in Southeast Asia have.
Copyright
Unlike the other rights above, copyright is not a true monopoly in that you have to show that somebody actually copied your work to prove infringement. On the other hand, it exists automatically as soon as the work has been expressed in some way. You do not usually have to go through any registration procedures to obtain copyright in Singapore. Copyright is particularly applicable for ‘creative’ works: written works (for example, novels, poems, this blog entry and also computer program code listings); dramatic works (movies, plays); musical works (songs) artistic works (pieces of art, sculpture, graphics). However, and unlike patents, copyright protects pretty much the exact way you set out your creation rather than the underlying concept. It protects the expression of an idea; not the idea itself.
The length of term of the copyright can vary on the types of copyright/the protected work and the copyright in the works noted above generally lasts for the life of the creator plus 70 years.
In a nutshell, there you have the basic facts about the more common types of IP right. Simple, yes? Well, unfortunately no, that’s not quite right and we’ll be exploring some other issues soon.
Michael McLaughlin is a patent attorney with at McLaughlin IP in Singapore. His practice extends across all areas of engineering and physical sciences, but has a particular focus on ICT.
