What is Intellectual Property?

Ownership of ideas and other intangible concepts is often times referred to as ownership of intellectual property.  Intellectual property (also sometimes referred to as “IP”) can take many tangible or intangible forms, and can protect many different types of concepts or ideas.  The most popular types of IP of which people are aware include patents, trademarks, copyright and industrial designs.

Each of these types of intellectual property is different.  While patents protect new inventions such as new products or processes, trademarks cover words, logos or the like which are used to distinguish one’s products or services from those of another. Copyright covers literary and artistic works, amongst others.

This booklet is intended to answer some of the most frequently asked questions about these various types of intellectual property protection.  Along with patents and trademarks and the other items listed above, it will also attempt to provide a basic informational outline on other common intellectual property issues, including trade secrets and confidential information, industrial designs, and the like.  The text of this booklet is intended for a broad general audience and as such we will not go into complex wording or issues, but rather try to outline these basic concepts in layman’s terms.  

While the contents of this booklet should hopefully be enough to acquaint the reader with the basic concepts of intellectual property and the types of issues which might apply to different situations, this booklet is not intended as nor is it extended as a legal opinion on any particular topic.  You should seek specific legal counsel on issues of concern or importance to you.

What types of intellectual property can be protected?

Intellectual property must be protected because it can be stolen or misappropriated, but it can’t be locked up.  If your intellectual property is stolen, it is also important to be able to prove that it was yours in the first place.  Often, however, it is hard to even describe such a thing let alone exercise control over it.  It leads to more questions than answers:

  -  what is it?

  -  what can I do with it?

  -  can I stop someone else from using it?

There are two types of intellectual property protection which can be used.  Some types of IP are protected by statutes, which are the written laws of a country or jurisdiction, and others are protected under common law schemes, or by judicial interpretation of the laws of a country or jurisdiction.  In certain cases there may be a number of common law and/or statutory protection methods which might be used with respect to a certain piece of intellectual property. 

The most common types of statutory IP protection are patents, trademarks, copyright and industrial designs.  Other methods of protection which are available include plant breeders’ rights protection and protection for integrated circuit topographies.  Legislative schemes vary by country, so it might even be the caser that a certain type of protection is available in one country, but something entirely different needs to be done in other jurisdictions to obtain equivalent protection. 

Common law protection methods include contracts, which can be used to protect trade secrets or confidential information or to license the use of a statutory IP right. 

Different intellectual property protection regimes each have different rules which are applicable to them.  To summarize, patents are given for an invention that is new, useful and not obvious.  On the other hand a trademark is registrable for a mark or guise which you may have been using or may intend to use to identify your goods or services to the buying public.  Copyright protects your rights in written materials and the like, and arises automatically when you create an original work of art or literature.

Some types of ideas currently cannot be protected in Canada by statutory forms of intellectual property protection include scientific theories or principles, laws of nature, methods of medical treatment, or ideas that are of a public nature or are obvious to someone dealing in the subject area of your idea or invention.  In these cases, alternative protection methods need to be considered.  Contractual protection and other common law methods can also be used.

Crafting a complete protection strategy for your intellectual property might involve one or more methods of protection dependent upon a number of factors including the country or jurisdiction in question, as well as the specific facts of the type of intellectual property, and the objectives of the owner in seeking protection.  Certain types of protective measures lend themselves better to protection against certain types of infringements or uses.  A lawyer and/or patent or trademark agent should be consulted for the most up to date information, along with guidance applicable to your particular fact situation.

A perfect example of the overlap of different intellectual property protection schemes is that of COCA-COLA.  The name COCA-COLA is a trademark used by the company to distinguish their product.  The formula itself is a trade secret which is held in secrecy, rather than being the subject of a patent.  The shape of the old-style glass bottle was once registered as an industrial design, and could potentially be a ‘distinguishing guise’ form of a trademark in that it is instantly recognizable still as a trademark characteristic of a Coke bottle.  There might be patents in place on various types of equipment used in the production or bottling process.  This is one example of how different types of intellectual property protection can be employed to provide a multi-layered protective scheme to a particular property.

International protection issues:

Internationally, protection methods vary between countries or regions.  As a result of a number of international treaties, agreements and organizations, a number of rules and regulations allow for the filing of patents, trademarks, copyright and industrial design applications, along with other forms of protection, in most countries around the world, and in some cases claiming priority between various jurisdictions.  The international filing system, however, contains many time lines and filing deadlines and periods, the observance and satisfaction of which are crucial to the preservation of your international rights.  Your Canadian lawyer or patent or trademark agent can see to filing and prosecution of such international materials on your behalf.

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