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Trademarks, Copyright and Other Intellectual Property (view source)
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{{REVIEWEDPLS | reviewer = Ling Wong, Fasken Martineau DuMoulin LLP |date= July 2018}} {{Dial-A-Law TOC|expanded = business}} | {{REVIEWEDPLS | reviewer = Ling Wong, Fasken Martineau DuMoulin LLP |date= July 2018}} {{Dial-A-Law TOC|expanded = business}} | ||
Inventors, designers, writers, other creative people, and entrepreneurs naturally want to protect the things they create. The laws involved in protecting ideas, inventions and designs are called | Inventors, designers, writers, other creative people, and entrepreneurs naturally want to protect the things they create. The laws involved in protecting ideas, inventions and designs are called '''intellectual property''' laws. | ||
== | ==What you should know== | ||
=== | ===The meaning of "intellectual property"=== | ||
Intellectual property is property in ideas, inventions and designs — intangible things that people create. | '''Intellectual property''' is property in ideas, inventions and designs — intangible things that people create. | ||
A '''patent''' protects new, useful and ingenious inventions. | A '''patent''' protects new, useful and ingenious inventions. | ||
An '''industrial design''' registration provides protection for the original visual features of a product. | An '''industrial design''' registration provides protection for the original visual features of a product. | ||
A '''trademark''' is a combination of letters, words, sounds or designs that distinguishes one business’ goods or services from those of others. | A '''trademark''' is a combination of letters, words, sounds or designs that distinguishes one business’ goods or services from those of others. | ||
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===A federal government agency administers intellectual property=== | ===A federal government agency administers intellectual property=== | ||
The '''Canadian Intellectual Property Office''' (CIPO) is the federal government agency responsible for administering intellectual property in Canada. This office is where you file an application to protect intellectual property. | The '''Canadian Intellectual Property Office''' (CIPO) is the federal government agency responsible for administering intellectual property in Canada. This office is where you file an application to protect intellectual property. [http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home They can be contacted online] or by toll-free phone at 1-866-997-1936. | ||
==Patents== | ==Patents== | ||
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A company, let’s call it National Mousetrap Corporation, that has developed a new and better mousetrap can apply for a patent to protect it. | A company, let’s call it National Mousetrap Corporation, that has developed a new and better mousetrap can apply for a patent to protect it. | ||
A patent can be a valuable business asset. It gives the patent owner the competitive advantage of a limited monopoly. A patent owner can license the patent to others or sell it. | A patent can be a valuable business asset. It gives the patent owner the competitive advantage of a limited monopoly. A patent owner can license the patent to others or sell it. | ||
A patent lasts for up to 20 years from the time the patent application is first submitted. | A patent lasts for up to 20 years from the time the patent application is first submitted. | ||
===How to get a patent=== | ===How to get a patent=== | ||
You can [ | You can [https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00001.html apply for a patent] by filing a patent application with the [http://www.cipo.gc.ca/ Canadian Intellectual Property Office] (CIPO). You have to pay the required fees. Your application must describe your invention in full and show you would put it into practice. The invention must meet patentability requirements, meaning that it is new and useful, and has inventive ingenuity. | ||
The Patent Office will not review your application unless you ask them to. Within five years of filing the patent application, you must formally ask the CIPO to consider (or examine) your application. You must pay the examination fee. | The Patent Office will not review your application unless you ask them to. Within five years of filing the patent application, you must formally ask the CIPO to consider (or examine) your application. You must pay the examination fee. | ||
About 18 months after you’ve paid this fee, a government patent examiner familiar with the subject matter will examine your application and decide if it meets the requirements for a patent. If the examiner has any objections to the application, they will issue an examiner’s report explaining why they are rejecting it. The applicant (or a patent agent they hire) must then respond within a certain time with arguments or amendments (or both) to support their application. The process can take one to four or more years before a patent is granted. | About 18 months after you’ve paid this fee, a government patent examiner familiar with the subject matter will examine your application and decide if it meets the requirements for a patent. If the examiner has any objections to the application, they will issue an examiner’s report explaining why they are rejecting it. The applicant (or a patent agent they hire) must then respond within a certain time with arguments or amendments (or both) to support their application. The process can take one to four or more years before a patent is granted. | ||
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{| class="wikitable" | {| class="wikitable" | ||
|align="left"|'''Tip''' | |align="left"|'''Tip''' | ||
Most applicants hire a registered patent agent or patent lawyer to help them with the application process. A list of registered patent agents is available from the [http://www.ic.gc.ca/cipo/pa-br/agents.nsf/pagents-eng?readform CIPO] and from the [https:// | Most applicants hire a registered patent agent or patent lawyer to help them with the application process. A list of registered patent agents is available from the [http://www.ic.gc.ca/cipo/pa-br/agents.nsf/pagents-eng?readform CIPO] and from the [https://ipic.ca/find-an-agent Intellectual Property Institute of Canada] (IPIC). | ||
|} | |} | ||
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===An industrial design registration protects unique visual design=== | ===An industrial design registration protects unique visual design=== | ||
Returning to the mousetrap example, imagine the company has designed its mousetrap so it has an attractive shape or design that appeals to consumers. But the company is worried that a competitor might soon copy the look and visual design of the mousetrap. To protect the design, the company can [http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00004.html apply] | Returning to the mousetrap example, imagine the company has designed its mousetrap so it has an attractive shape or design that appeals to consumers. But the company is worried that a competitor might soon copy the look and visual design of the mousetrap. To protect the design, the company can [http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00004.html apply for an industrial design registration] from the Canadian Intellectual Property Office. | ||
An industrial design registration protects the original visual features of a product. (This differs from a '''patent''', which generally protects how an invention works.) Examples of industrial design that people might seek to protect include the shape of a table, the pattern of a fabric, the visual design of a computer keyboard, or the decoration on the handle of a spoon. | An industrial design registration protects the original visual features of a product. (This differs from a '''patent''', which generally protects how an invention works.) Examples of industrial design that people might seek to protect include the shape of a table, the pattern of a fabric, the visual design of a computer keyboard, or the decoration on the handle of a spoon. | ||
===How to apply for an industrial design registration=== | ===How to apply for an industrial design registration=== | ||
You can [http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00004.html apply | You can [http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00004.html apply for an industrial design registration] from the CIPO. You have to pay the required fees. You must apply within one year after the design, or an article showing the design, has first been publicly used, displayed or sold. | ||
Many countries outside of Canada and the US require you to submit your application for registration before there is any public disclosure of your design, the same as with patents. | Many countries outside of Canada and the US require you to submit your application for registration before there is any public disclosure of your design, the same as with patents. | ||
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===Trademark registration protects words and logos=== | ===Trademark registration protects words and logos=== | ||
Suppose the National Mousetrap Corporation, in addition to designing a unique mousetrap, has also developed a catchy name to brand the product. Or it might have developed a distinctive logo to use on the boxes the mousetraps are sold in and in magazine ads for its mousetraps. To prevent competitors from using the same brand name or logo, it can apply for | Suppose the National Mousetrap Corporation, in addition to designing a unique mousetrap, has also developed a catchy name to brand the product. Or it might have developed a distinctive logo to use on the boxes the mousetraps are sold in and in magazine ads for its mousetraps. To prevent competitors from using the same brand name or logo, it can apply for trademark registration. (Copyright protection for the logo may also be available, discussed later.) | ||
A '''trademark''' is a combination of letters, words, sounds or designs that distinguishes one business’ goods or services from those of others in the minds of consumers. The words “Under Armour” on athletic clothing, the red “K” on a box of Kellogg’s Corn Flakes, and the alligator on Lacoste t-shirts, are familiar trademarks. | A '''trademark''' is a combination of letters, words, sounds or designs that distinguishes one business’ goods or services from those of others in the minds of consumers. The words “Under Armour” on athletic clothing, the red “K” on a box of Kellogg’s Corn Flakes, and the alligator on Lacoste t-shirts, are familiar trademarks. | ||
===How to protect a trademark=== | ===How to protect a trademark=== | ||
You can [http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00002.html apply to register a trademark] with the Canadian Intellectual Property Office. You must pay the required fee. You may file a trademark application based on use (if you have already started using the trademark in your business) or based on proposed use (you intend to use the trademark soon, but you haven’t yet started using it). | You can [http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00002.html apply to register a trademark] with the Canadian Intellectual Property Office. You must pay the required fee. You may file a trademark application based on use (if you have already started using the trademark in your business) or based on proposed use (you intend to use the trademark soon, but you haven’t yet started using it). | ||
Your application is reviewed by a trademark examiner who decides if the application meets the requirements for registration (they consider, for example, whether it is confusing with any prior registrations or applications). If the application is approved, the trademark is published (to give others a chance to oppose the application). If no one opposes it, your trademark will be registered. | Your application is reviewed by a trademark examiner who decides if the application meets the requirements for registration (they consider, for example, whether it is confusing with any prior registrations or applications). If the application is approved, the trademark is published (to give others a chance to oppose the application). If no one opposes it, your trademark will be registered. | ||
Although trademark applications are not as tricky and complex as patent applications, it’s still helpful to hire a trademark agent to handle the process. The Trademarks Office at the CIPO keeps | Although trademark applications are not as tricky and complex as patent applications, it’s still helpful to hire a trademark agent to handle the process. The Trademarks Office at the CIPO keeps [http://www.ic.gc.ca/cipo/mc-tm/agents.nsf/tmagents-eng?readform&wt_src=cipo-tm-main a list of trademark agents]. So does the [https://ipic.ca/find-an-agent Intellectual Property Institute of Canada] (IPIC). | ||
===You don’t have to register a trademark, but there are advantages to doing so=== | ===You don’t have to register a trademark, but there are advantages to doing so=== | ||
You don’t have to register a trademark to use it. But there are advantages to registering. Registration gives you the exclusive right to use your trademark (with the types of goods or services the trademark is registered for) throughout Canada for 15 years. It also gives you the right to stop others from using a mark that is confusingly like yours. | You don’t have to register a trademark to use it. But there are advantages to registering. Registration gives you the exclusive right to use your trademark (with the types of goods or services the trademark is registered for) throughout Canada for 15 years. It also gives you the right to stop others from using a mark that is confusingly like yours. | ||
On the other hand, an unregistered trademark can be protected only where you can prove the trademark is known and has an established reputation. | On the other hand, an unregistered trademark can be protected only where you can prove the trademark is known and has an established reputation. | ||
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Suppose the National Mousetrap Corporation, having developed its unique mousetrap, is ready to launch an advertising campaign. Its advertising department creates a brilliant script for a TV commercial. The law of '''copyright''' protects the ownership of the script. | Suppose the National Mousetrap Corporation, having developed its unique mousetrap, is ready to launch an advertising campaign. Its advertising department creates a brilliant script for a TV commercial. The law of '''copyright''' protects the ownership of the script. | ||
In Canada, the law automatically gives the author, artist or creator of original works like poems, books, plays, musical scores, computer programs, and paintings ownership rights or “copyright” in that creation. Copyright can arise only when a work has been fixed or created in some way: for example, a book has been written, a song recorded, or a movie filmed. | In Canada, the law automatically gives the author, artist or creator of original works like poems, books, plays, musical scores, computer programs, and paintings ownership rights or “copyright” in that creation. Copyright can arise only when a work has been fixed or created in some way: for example, a book has been written, a song recorded, or a movie filmed. | ||
Many items in a business — such as the company website, advertising materials and more — are probably protected by copyright. Copyright means no one else can copy or substantially reproduce your work without your permission. This right generally lasts during the life of the author plus 50 years after they die. | Many items in a business — such as the company website, advertising materials and more — are probably protected by copyright. Copyright means no one else can copy or substantially reproduce your work without your permission. This right generally lasts during the life of the author plus 50 years after they die. | ||
===Copyright does not apply in some circumstances=== | ===Copyright does not apply in some circumstances=== | ||
There is no copyright in ideas; only the original expression of an idea can be copyrighted. | There is no copyright in ideas; only the original expression of an idea can be copyrighted. | ||
If you use your artistic work on a useful article, such as a decorative lamp or goblet, by using the article as a model or pattern to make 50 or more decorative lamps or goblets, then copyright protection, with some exceptions, isn’t usually available. You generally have to apply for registration of an industrial design instead. | |||
You can’t claim copyright in a very short combination of words, such as the title of a book or song. This likely doesn’t meet the originality requirement. | You can’t claim copyright in a very short combination of words, such as the title of a book or song. This likely doesn’t meet the originality requirement. | ||
===Copyright arises automatically=== | ===Copyright arises automatically=== | ||
Because copyright is automatic, you don’t have to register it. But [http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00003.html registering a copyright] with the Canadian Intellectual Property Office (and paying the required fees) can help prove you own the copyright. This can be especially helpful if you have to sue someone for | Because copyright is automatic, you don’t have to register it. But [http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00003.html registering a copyright] with the Canadian Intellectual Property Office (and paying the required fees) can help prove you own the copyright. This can be especially helpful if you have to sue someone for '''infringement''' of your copyright. When you register your copyright, you are the presumed owner of the work and the burden of proof is on the person challenging your copyright to disprove your ownership. If you don’t register your copyright, the burden of proof is on you to prove you own the copyright. | ||
===Protecting trade secrets and confidential business information=== | ===Protecting trade secrets and confidential business information=== | ||
The law recognizes that businesses want to protect their '''trade secrets''' and confidential business information. This could include special recipes, training manuals, methods of doing business and inventions that aren’t patented — all of which the business might want to keep secret from competitors and the public. | The law recognizes that businesses want to protect their '''trade secrets''' and confidential business information. This could include special recipes, training manuals, methods of doing business and inventions that aren’t patented — all of which the business might want to keep secret from competitors and the public. | ||
You don’t register this type of information. The law on trade secrets hinges on whether you have taken steps to keep the information secret. Having employees, customers or business partners sign a '''confidentiality''' or '''non-disclosure agreement''' is the most common way to show you are taking steps to protect secret and confidential information. As well, if someone breaks the agreement, you can sue them. | You don’t register this type of information. The law on trade secrets hinges on whether you have taken steps to keep the information secret. Having employees, customers or business partners sign a '''confidentiality''' or '''non-disclosure agreement''' is the most common way to show you are taking steps to protect secret and confidential information. As well, if someone breaks the agreement, you can sue them. | ||
One risk with a trade secret is that once it is no longer secret, it can be lost. Without a contractual obligation, nothing can prevent someone else from independently creating or reverse engineering the subject matter of your trade secret. | One risk with a trade secret is that once it is no longer secret, it can be lost. Without a contractual obligation, nothing can prevent someone else from independently creating or reverse engineering the subject matter of your trade secret. | ||
== | ==Who can help== | ||
The '''Canadian Intellectual Property Office''' (CIPO) is the federal government agency responsible for administering intellectual property in Canada. | The '''Canadian Intellectual Property Office''' (CIPO) is the federal government agency responsible for administering intellectual property in Canada. | ||
: | :Call 1-866-997-1936 | ||
:[http://www.ic.gc.ca/ Visit website] | |||
The '''Intellectual Property Institute of Canada''' (IPIC) is the professional association of patent agents, trademark agents, and lawyers practising intellectual property law. | The '''Intellectual Property Institute of Canada''' (IPIC) is the professional association of patent agents, trademark agents, and lawyers practising intellectual property law. | ||
: | :Call 1-613-234-0516 | ||
:[https://www.ipic.ca/ Visit website] | |||
{{Dial-A-Law_Navbox|type=work}} | {{Dial-A-Law_Navbox|type=work}} | ||
{{Dial-A-Law Copyright}} | {{Dial-A-Law Copyright}} | ||