Intellectual Property Law
Intellectual property (IP) is property belongs to the class of “intangible creations of the human intellect”. It mainly contains copyrights, patents, and trademarks, but also includes things like trade secrets, publicity rights, moral rights, and rights against unfair competition. Artistic works e.g. paintings and designs, symbols, music, literature, words and phrases, discoveries, inventions etc. are considered to be IP and as such they are protected by Intellectual Property Law.
To encourage people to be creative, a broad range of products of the intellect (inventions, creative works etc.) must be protected so that owner shall be encouraged to disclose them. If there is no economic incentive for creation and no profit from it, there won’t be any motivation for innovation and the world shall remain stagnant, something that happened during the middle ages where religious dogma had permeated and governed all human activities and was not permissible to digress from it. The WIPO treaty protects IP rights noting that they is essential to maintaining economic growth. Also the Anti-Counterfeiting Trade Agreement (ACTA) signed by the EU, Switzerland the USA and Japan, states that “effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally.” To accomplish this, Intellectual Property Law is a part of private civil law but breaches of IP rights are often criminal offences and belong to public law. It grants proprietary rights and protects creative and intellectual goods for a period of time which varies according to the type of intellectual good protected. According to Article 27 of the Universal Declaration of Human Rights of the UN: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. This protection must balance the rights of the creators (owners) with the rights of the users so that on one hand creation of intellectual goods is encouraged and on the other hand wide use of these goods is not prevented and society is not deprived of them.
Because intellectual property is intangible there are various difficulties in trying to protect it. Unlike property, like goods or land, which is limited in its extent, IP cannot be limited or divided exhaustively between its users. An intellectual good cannot be depleted, it can be used repeatedly, and its potential consumers or users are unlimited. To stop trespassers, a land owner can fence it, but a music composer or a music record producer may be unable to stop a buyer of a CD from replicating it multiple times and reselling it. Furthermore, intellectual goods may be easily appropriated by copying the basic principle of its design (e.g. in computer programs and electronics) and changing its cover.
Types of IP rights
IP rights include things such as:
- Copyright: These are IP rights of creators of an original product of the intellect (which includes a wide range of creative, intellectual, or artistic forms e.g. a work of music, art, literature etc.) who are considered to be the owners of that work and have exclusive rights to it. A copyright is created the moment a work is produced by its creator and does not need registration. A copyright usually lasts for 50 years after the death of the creator (owner) so that these rights can be enjoyed by the creator during his/her lifetime and also be left as inheritance to his/her loved ones. Copyright does not cover ideas or information but only the form, manner or medium in which they are expressed. It is legal to make fair use (fair dealing) of copyrighted material without permission e.g. to make comments, to criticize, to review, to parody the work, for reporting of current events and for non-commercial research or study. The EU copyright legislation is a set of ten directives, which harmonise essential IP rights of creators, authors, performers, producers and broadcasters.
- Patents: These are IP rights granted by the state to an inventor in exchange for the public disclosure of the invention, and give the owner a right which excludes others from producing, using, selling, offering to sell, and trading the goods for a certain period of time. Inventions are innovations in technology based on new theory or design that overcome traditional barriers. These may take the form of products or processes which are new, inconspicuous and can have industrial application. A patent is defined by “claims” that demarcate the exact limits of what the patent covers. In this respect, the patented inventor may exclude third parties from producing, using or selling only those things described in the claims. The EU patent legislation comprised of national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of EU directives and regulations.
- Trademarks: These are IP rights granted by the state (or at an EU level by the European Union Intellectual Property Office (EUIPO.) to the original user and creator of a recognisable name, logo, sign, design or expression which characterises and distinguishes products or services of a particular trader from similar products or services of other traders belonging to the same class. There are two main ways to register a trade mark in the EU. They can either be registered at national level at the industrial property offices of EU countries, or at EU level as a “European Union trade mark” (EUTM) at the EUIPO and, subject to use, may have potentially unlimited duration.
- Industrial design rights: An patent or IP right in industrial design protects the visual design of objects that is not made for virtually practical purposes e.g. a shape, configuration or composition of pattern or colour, or combination of pattern and colour in two- or three-dimensional form that is used for containing an aesthetic value in a product, commodity or handicraft. The EU has adopted a Directive on the legal protection of designs in 1998 which ensures that registered design rights give the right holder equivalent protection in all EU countries.
- Trade dress: This IP rights generally refers to visual and aesthetic characteristics in the appearance or design of a product or its packaging that denote to consumers that it comes from a particular inventor, creator, designer, source or manufacturer. At the EU level, double protection is currently available for trade dress under both trademark law and under design law. Each one has its advantages, problems and limits. In order to attain trademark protection, the trade dress must be distinctive enough to pass the standards set by the ECJ. Design rights can be attained more simply than trademark rights but because these are akin to patent rights, they are only valid for a certain period of time and lapse after 25 years (for Registered Community Designs) and cannot be extended. After expiration the design is considered as public domain and anyone is free to use it.
- Trade secrets: This is an IP right connected to the business and trade of the owner. A trade secret may take the form of a blueprint, a plan, a design, a practice, a method, a procedure, an application, a technique, a process, a system, a mechanism, a preparation, a formula, a recipe, a concoction, a potion, a mixture, an alloy, a solid, a compound, a cream, a paste, a lotion, a liquid, a solution, an instrument, or the compilation of data or information which is not generally known or cannot be reasonably ascertained. The owner of the trade secret can obtain an economic advantage over competitors and customers by using it. In the EU these are protected by the Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.
- Geographical indications: This is an IP right connected to the name or sign associated with products coming from a specific geographical location or origin such as a town, a region, or a country (e.g. champagne, cognac, whiskey, roquefort, hallumi, guacamole etc.). The use of a geographical indication may be deemed to act as a form of guarantee that, because of the geographical origin of the product, it may cause a consumer to believe that this product enjoys a certain reputation, has a particular flavour, possesses certain distinct qualities, is produced by traditional methods. These are afforded the same protection as trademarks or certification marks. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) contains a specific section on geographical indications and defines them as indications that identify a good as “originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin."
- Plant variety (breeder’s) rights: These are IP rights granted by the state to the breeder of a new variety of plant that give exclusive rights to the breeder for a certain period of time to use this new variety commercially i.e. rights over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety. It does not include rights upon animal breeds. In the EU this is called a Community plant variety right (CPVR) and is similar to a patent. Once it is granted it is valid throughout the EU and is implemented by the Community Plant Variety Office (CPVO) which is financially independent from EU institutions.
- Genetically modified organisms rights: These are IP rights created by biotechnology and are only protected as IP in the USA.. The EU has enacted strict laws on genetically modified organisms (GMOs), food and feed made from GMOs, and food or feed consisting or containing GMOs. The EU policy is based on the precautionary principle and is designed to prevent adverse effects on the environment or the health and safety of humans and animals.
- Electronic circuit design (mask work) rights: These are IP rights connected with the two or three-dimensional layout or topography of an integrated circuit (microchip) and relate to the arrangement of semiconductor devices (e.g. transistors) and passive electronic components (e.g. resistors or interconnections) on a microchip. In the EU, these are afforded protection by the Directive on the Legal Protection of Semiconductor Products.
- Supplementary protection certificates: These are an IP right that can extend for a maximum of five years a patent right and apply for specific pharmaceutical and plant protection products that have been authorised by regulatory authorities. They are granted after expiry of a patent protecting them and aim to offset the loss of patent protection for certain products that are only licenced after a compulsory lengthy testing and clinical trials before being approved for placement into the market. In the EU these are issued on authority of the regulation concerning the creation of a supplementary protection certificate for medicinal products and the Regulation concerning the creation of a supplementary protection certificate for plant protection products.
- Database rights (in the EU): This is a new type of IP independent and complementary to copyright created in 1998 and protects investment in obtaining, verifying and presenting the contents of a database. This IP is distinct from the intellectual effort in creating it which is protected by copyright. In the EU database rights emanate from Copyright and Rights in Databases Regulations 1997 of EUIPO and from local laws in member states which were enacted to implement the Directive on the legal protection of databases.
- Publicity rights: This is a form of IP right that protects against the misappropriation of the “persona” i.e. a person’s name, likeness or other traits of personal identity for commercial benefit. In the USA, the right of publicity exists in some states but not been recognized at the federal level and the EU has not developed a unique approach regarding this IP right, as it would clash with freedom of expression of comedians and impersonators. Criminal laws prohibit identity theft and identity fraud. From a trademark point of view, a person’s name or likeness may be developed and registered e.g. Colonel Sanders’ persona in the KFC chain. This has motivated some celebrities register their names and/or likenesses as trademarks.
- Moral rights: These are the IP rights of existing owners of copyright works that are distinct from any economic rights connected to copyrights and protect anything that may undermine the relationship of the creator with the work. An artist shall continue maintain the moral rights to his/her work even after he/she alienates the possession or assigns or sells the ownership of the work to a third party. Therefore these rights shall not be expunged until the death of the author. They include:
- The right of attribution or paternity: To be identified as the creator or author of the work.
- The right to privacy: To be allowed to publish the work anonymously or pseudonymously.
- The right to integrity: To object to derogatory treatment of a work e.g. to object to its alteration, distortion, or mutilation in a manner that is detrimental to the author's honour or reputation.
- The right not to be identified as the author of someone else's work: \
The EU has not developed harmonised legislation for moral rights.
- Rights against unfair competition: These are IP rights aiming to prevent unfair practices and certain actions. Article 10 of the Paris Convention classifies unfair business practices into three broad categories of behaviour classified as unfair competition:
- Acts causing confusion: These are acts or practices used in the course of industrial or commercial activities by someone, which cause or are likely to cause confusion regarding a competitor’s business or its activities especially its products or services offered. Appearance of a product includes packaging, shape or other non-functional characteristic features of the product.
- Acts that are misleading: Misleading acts can create a false impression of a competitor’s product or services leading the consumer to act on false information and to suffer financial damage. Misleading acts may be statements giving incorrect indications or making false allegations about a business or its products (e.g. product safety) or services offered.
- Acts damaging goodwill or reputation: Acts damaging the distinctive character, qualities, appearance, value or the status attached to a product could damage the goodwill or reputation of a business.
- Other acts that could be classified as causing unfair competition include discrediting a business or its activities, engaging in industrial or commercial espionage and acting unfairly regarding confidential information by divulging it or by breaching confidence.
- Under the Paris Convention, EU countries must provide protection against unfair competition. This obligation is reinforced by Article 2 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) that obliges members of the WTO to comply with the Paris Convention.
Breach of IP rights
Infringement (violation) of IP rights, called regarding patents, copyright, and trademarks, and misappropriation (theft or embezzlement) of trade secrets allows owner of the IP right to take action for breach of civil law and (in most jurisdictions) for a breach of criminal law.
Patent infringement: This relates to the production, use or sale of a product protected by a patent without the permission of the patent holder. The coverage or extent of protection of a patent is defined in the claims which demarcate the scope of the patented invention granted. Patent infringement is usually a matter of civil litigation, and in some cases there are specialised IP courts that may try such cases, but many jurisdictions, including Cyprus, patent infringement is also a criminal offence.
Copyright infringement: This relates to the copy, reproduction, distribution, display or performance of creative work, including making derivative works, without the permission of the copyright holder. Copyright holders may be the publishers or producers that the creator has assigned the work to (a music producer of a publishing company), but also the creators themselves (e.g. a composer or a writer). Copyright infringement is also called “piracy” and can usually be contested by the owner in a civil court, but in several jurisdictions, including Cyprus, it can be enforced by the police if “piracy” is a criminal offence. The ACTA trade agreement requires its signatories to make copyright and trademark infringement a criminal offence and to actively counteract its breaches.
Trademark infringement: This arises when someone trades or uses a name, mark or logo that is identical or confusingly similar to a registered or unregistered trademark of another trader or uses. This relates to products or services which are identical or similar to the products or services of the other party. In many countries an unregistered trademark may still receive protection but registering it may provide legal advantages for enforcement in cases of infringement. Trademark infringement is usually contested by the owner in civil litigation proceedings and, and in many jurisdictions, including Cyprus, trademark infringement is also a criminal offence.
Trade secret misappropriation: While patents, trademarks and copyrights are publicly available trade secrets are undisclosed and there is difficulty in proving the extent of the theft or embezzlement. In the USA misappropriation of a trade secret is a federal crime under the Economic Espionage Act. In common law jurisdictions, confidentiality and trade secrets are regarded as equitable rights and are protected as such. In the EU these are protected by the Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.
Our services
Our services include all Intellectual law matters, claims and disputes such as:
- Legal Opinions.
- Acquisition registration and protection of trademarks.
- Acquisition registration and protection of copyrights.
- Acquisition registration and protection of patents.
- Acquisition registration and protection of other IP rights such as industrial design rights, trade dress, trade secrets, plant variety (breeder’s) rights, electronic circuit design (mask work) rights, database rights, publicity rights, rights against unfair competition etc.
- Instigation of actions on copyright infringement and passing-off.
- Instigation of actions on patent and trademark infringement and passing-off.
- Arbitration Proceedings regarding registration and protection of trademarks and patents.
- Appeals etc.