Intellectual Property

REPORT ON

PROTECTION

OF INTELLECTUAL PROPERTY RIGHTS

Patuakhali Science and Technology University Dumki, Patuakhali

SUBMITTED TO Page | 1 Protection of Intellectual Property

Md. Muzahidul Islam Lecturer Department of Management Studies Faculty of Business Administration and Management

SUBMITTED BY Group:

05 (liberty) Level: 04; Semester: 01 Faculty of Business Administration and Management

01Md. Mofizer Rahaman

Member

12

00671

02

Dipayan Chakma

Member

17

00676

03

K.M. Assaduzzaman

Member

06

00665

04

Tanjia Sultana

Member

10

00669

05

Azmiry Khanom

Member

20

00679

06

Shofiq Uddin Khan

Member

23

00682

International Business Course code: MST-419

Date of Submission: June 03, 2009

Patuakhali Science and Technology University Dumki, Patuakhali Page | 2 Protection of Intellectual Property

PROTECTION

OF INTELLECTUAL PROPERTY RIGHTS

LETTER

OF

TRANSMITTAL Page | 3

Protection of Intellectual Property

Date: June 03, 2009 Md. Muzahidul Islam Lecturer Department of Management Studies Patuakhali Science and Technology University Subject: Submission Term Paper on “Protection of Intellectual Property Rights.” Dear Sir, Here we are submitting our term paper on “Protection of Intellectual Property Rights.” prescribed by you on your course International Business. For this purpose, we have gone through internet, different books, articles, and journals. Please call us for any further information at your convenient time and place. Yours truly,

Group 05 (Liberty) BBA Level- IV Semester- I Session: 2004-2005 Patuakhali Science and Technology University

Page | 4 Protection of Intellectual Property

LETTER

OF

AUTHORIZATION

Date: June 03, 2009 Md. Muzahidul Islam Lecturer Department of Management Studies Patuakhali Science and Technology University Subject: Declaration regarding the validity of the report. Dear Sir, This is our truthful declaration that the “Protection of Intellectual Property Rights.” we have prepared is not a copy of any report previously made by any group. We also express our honest confirmation in support of the fact that the said “Report” has neither been used before to fulfill any other course related purpose nor it will be submitted to any other person or authority in future. Yours truly,

Group 05 (liberty) BBA Level-IV Semester-I Session: 2004-2005 Patuakhali Science and Technology University

Page | 5 Protection of Intellectual Property

ACKNOWLEDGEMENT

During the period of preparing the report, we had gained altruistic assistance from a number of persons including our honorable and respectable course teacher Md. Muzahidul Islam, Lecturer, Department of Management Studies, faculty of Business Administration and Management.

We are thankful to the respective personnel of different organization because they showed their highest degree of temperament in answering our relentless questions. Such if their friendly cooperation and kindness did not even allow us to strive for a single moment for.

Last of all, thanks to every members of this group. They put their spontaneous endeavors and best effort to complete the report successfully.

TABLE

OF CONTENTS

[

Contents Page no. [

Page | 6 Protection of Intellectual Property

Letter of transmittal iii Letter iv

of

authorization

Acknowledgement v Executive vii

summary

[

CHAPTER: 1 [[[

Scope viii

and

Methodology ix Limitation x

objectives of of

of

the the

the

report study study

[

CHAPTER: 2 ABSTRACT 01 OBJECTIVES OF PROTECTING INTELLECTUAL PROPERTY 03

02-

HISTORY 03-04 WORLD INTELLECTUAL PROPERTY ORGANIZATION 04 INTELLECTUAL 05-06

PROPERTY:

BANGLADESH 06-07

INTELLECTUAL

GENERAL PROPERTY

THEORIES LAW

Chapter 4 INTRODUCTION 08

INTELLECTUAL PROPERTY Page | 7 Protection of Intellectual Property

PATENTS 10 KNOW-HOW 10 COPYRIGHT 11 DESIGN 12 DATABASE RIGHT 12-13 TRADEMARKS 13-16

PROTECTING INTELLECTUAL PROPERTY Copyright 17-18 Patents 19-20 Designs 20-21 Database Rights 22 Trade Marks 23 Confidentiality 24 HOW STRONGER PROTECTION OF INTELLECTUAL PROPERTY 25-26

RIGHTS

AFFECTS

INTERNATIONAL

TRADE

FLOWS

CRITICISM 27 SUMMARY AND CONCLUSION 28 REFERENCE 28

Page | 8 Protection of Intellectual Property

EXECUTIVE SUMMERY

This report is an assigned job as partial fulfillment of course requirement by honorable course teacher Md. Muzahidul Islam, Lecturer, department of Management Studies, faculty of Business Administration and Management, Patuakhali Science and Technology University, Dumki, Patuakhali. The view of this report is to find out the methods of protecting the intellectual property rights.

Protection of intellectual property rights are now the burning question of the day. In this present competitive business world each and every where there is high competition. Every one wants to earn a large profit. For this, there may be some cases of doing wrong thing. But it is not legal. All have to work on their way. And then need the right way of protecting the intellectual property rights.

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INTRODUCTION SCOPE

AND OBJECTIVE OF THE REPORT

As a business executive of future, we should have to gather experience beside our institutional education. We should not concern our lesson only in classroom but to implement it in practical life that will help us in our future life. So, identify objectives is very much important. Our purpose of preparing the report is:

To know more about intellectual property. To define the government steps regarding intellectual property. To know the private organizations’ intellectual property rights. To know about the present situation about protection of intellectual property. To identify the current state of affairs regarding protection of intellectual property. To know about how the organization treat intellectual property-as an asset or something other. Page | 10 Protection of Intellectual Property

To gather some knowledge about the rules and regulation about intellectual protection.

METHODOLOGY

OF THE

STUDY

Collection of data is an important part of a term paper preparation. In preparing the report, we have maintained some steps. Which are given bellow —

Step-1: At first, we collect data about the protection of intellectual property and followed the primary and the secondary data collection method. Step-2: For primary data collection, made an interview of some lawyers and different organization and gathered primary data. Step-3: For the collection of secondary data, we provide interview schedule through e-mail and collect several information’s about our report. Step-4: we also gather some secondary data with the help of different web site. Step-6 : then we write, tabulate and analyze the whole information

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Step-6: with the above procedure we have completed the report successfully.

LIMITATION

OF THE STUDY

It was not so easy to us prepare such type of report as the following reasons was existed.

This report is based on protection of intellectual property. We don’t have sufficient knowledge about intellectual property. This is a descriptive and analysis based report. So it needs sufficient time. But we do not have surplus time to make such kind of analytical and descriptive report. Intellectual property is a very much important part of an organization. Therefore, it is very possible to overlook some of information’s. The high officials are very busy in their work, so each and every time we have face some problems gathering and reporting the information’s. Page | 12 Protection of Intellectual Property

Although we face some limitation, we were trying our best to overcome these complexities and provide information as far as

possible.

ABSTRACT Intellectual property rights are a bundle of exclusive rights over creations of the mind, both artistic and commercial The former is covered by copyright laws, which protect creative works, such as books, movies, music, paintings, photographs, and software, and gives the copyright holder exclusive right to control reproduction or adaptation of such works for a certain period of time The second category is collectively known as "industrial properties", as they are typically created and used for industrial or commercial purposes. A patent may be granted for a new, useful, and non-obvious invention and gives the patent holder a right to prevent others from practicing the invention without a license from the inventor for a certain period. A trademark is a distinctive sign, which is used to prevent confusion among products in the marketplace. An industrial design right protects the form of appearance, style or design of an industrial object from infringement. A trade secret is an item of non-public information concerning the Page | 13 Protection of Intellectual Property

commercial practices or proprietary knowledge of a business. Public disclosure of trade secrets may sometimes be illegal. The term intellectual property denotes the specific legal rights described above, and not the intellectual work itself. Key term: Intellectual property, Intellectual property rights, industrial properties, commercial purpose, trade secret.

OBJECTIVES INTELLECTUAL PROPERTY

OF

PROTECTING

Financial incentive Intellectual property rights grant exclusive rights to intellectual creations; they grant ownership over creations of the mind. These exclusive rights allow owners of intellectual property to reap monopoly profits. These monopoly profits provide a financial incentive for the creation of intellectual property, and pay associated research and development costs.

Technology diffusion Technology diffusion occurs if intellectual property is licensed or sold, conversely technology can equally be prevented from being shared, should the owner wish not to sell or license.

Economic growth The legal monopoly granted by Intellectual Property laws are credited with significant contributions toward economic growth. Economists estimate that two-thirds of the value of large businesses can be traced to intangible assets. Likewise, industries which rely on IP protections are estimated to produce 72 percent more value per added employee than non-IP industries. There is a positive correlation between the strengthening of the IP system and subsequent economic growth. However, correlation does not necessarily mean causation: given that the patent holders can freely relocate. In some of the cases, the economic growth that comes with a stronger IP system is due to increase in stock capital from direct foreign investment. Page | 14 Protection of Intellectual Property

Economics Intellectual property rights are considered by economists to be a form of temporary monopoly enforced by the state (or enforced using the legal mechanisms for redress supported by the state). Intellectual property rights are usually limited to non-rival goods, that is, goods which can be used or enjoyed by many people simultaneously—the use by one person does not exclude use by another. This is compared to rival goods, such as clothing, which may only be used by one person at a time. For example, any number of people may make use of a mathematical formula simultaneously. Some objections to the term intellectual property are based on the argument that property can only properly be applied to rival goods (or that one cannot "own" property of this sort). Since a non-rival good may be used (copied, for example) by many simultaneously (produced with minimal marginal cost), producers would need incentives other than money to create such works. Monopolies, by contrast, also have inefficiencies (producers will charge more and produce less than would be socially desirable). The establishment of intellectual property rights, therefore, represents a trade-off, to balance the interest of society in the creation of non-rival goods (by encouraging their production) with the problems of monopoly power. Since the trade-off and the relevant benefits and costs to society will depend on many factors that may be specific to each product and society, the optimum period of time during which the temporary monopoly rights exist is unclear.

HISTORY Modern usage of the term intellectual property began with the 1967 establishment of the World Intellectual Property Organization (WIPO). The concept appears to have made its first appearance after the French revolution. In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant, argued against the recently introduced idea of "property which has been called intellectual." The term intellectual property can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears." The statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years." In Europe, French author A. Nion mentioned Page | 15 Protection of Intellectual Property

propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846. The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as property does not seem to exist – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century. The Talmud contains the prohibitions against certain mental crimes (further elaborated in the Shulchan Aruch), notably Geneivat da'at ( literally "mind theft"), which some have interpreted as prohibiting theft of ideas, though the doctrine is principally concerned with fraud and deception, not property.

WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO) What is the Organization?

World

Intellectual

Property

Established in 1970, the World Intellectual Property Organization (WIPO) is an international organization dedicated to helping to ensure that the rights of creators and owners of intellectual property are protected worldwide and that inventors and authors are thus recognized and rewarded for their ingenuity.

How does WIPO promote the protection of intellectual property? WIPO also provides global registration systems – for patents, trademarks, and industrial designs –that are under regular review by Member States and other stakeholders to determine how they can better serve the needs of users and potential users. WIPO works with its Member States to demystify intellectual property from the grass-roots level through the business sector to policy makers to ensure that its benefits are well known, properly understood, and accessible to all.

TRIPS- THE NEW COLD WAR TRIPS-2006 Trade Related Intellectual Property Rights (TRIPS): Intellectual Property (IP) is that creation of human mind that is of value to the mankind. Intellectual Property Rights (IPR) are the rights granted to persons (inventor) for creation of their mind. TRIPS or Trade Related Intellectual Property rights provide the norms and standard for protection of intellectual property. The TRIPS agreement provides minimum norms and standards for seven forms of intellectual property viz. Page | 16 Protection of Intellectual Property

1. Copy Rights and Related Rights 2. Trade Marks 3. Patents 4. Geographical Indicators/Names used to identify products 5. Industrial Design 6. Layout for integrated circuits and 7. Undisclosed Information Out of the seven, patents remain the most controversial as this agreement under TRIPS confers monopoly rights to the intellectual property holder.

INTELLECTUAL PROPERTY: GENERAL THEORIES The theory of intellectual property has not, until recently, attracted much philosophical interest or been the subject of deep controversy. Utilitarian theorists generally endorsed the creation of intellectual property rights as an appropriate means to foster innovation, subject to the caveat that such rights are limited in duration so as to balance the social welfare loss of monopoly exploitation. Non-utilitarian theorists emphasized creators’ moral rights to control their work. With the increasing importance of intellectual property in society and the development of particular new technologies, most notably digital technology and the decoding of genetic structure, the theory of intellectual property has attracted heightened interest. Economists and policy analysts have greatly enriched our understanding of the complex relationship between intellectual property protection and innovation and diffusion of technological advances. Non-utilitarian theories of intellectual property have proliferated in recent years, as philosophers and legal scholars have applied traditional and novel philosophical perspectives to the realm of intellectual property. This article surveys and synthesizes the deepening and widening theoretical landscape of intellectual property. While much of the130 Intellectual Property: General Theories 1600 discussion transcends the law of any particular nation, the statutory and doctrinal examples are drawn principally from the particularities of the Unites States intellectual property regimes.

Economic Theories of Intellectual Property Not surprisingly, the principal philosophical theory applied to the protection of utilitarian works - that is, technological inventions - has been utilitarianism. The social value of utilitarian works lies principally if not exclusively in their ability to perform tasks (for example, a better mousetrap) or satisfy desires more effectively or at lower costs. It is logical; therefore, that society would seek to protect such works within a Page | 17 Protection of Intellectual Property

governance regime that itself is based upon utilitarian precepts. Furthermore, inventions – new processes, machines, manufactures, or compositions of matter – unlike artistic or literary expression do not generally implicate personal interests of the creator. In addition, the utilitarian perspective has relevance to other forms of intellectual property. Trade secret law often protects utilitarian works. Trademark law is principally concerned with ensuring that consumers are not misled in the marketplace and hence is particularly amenable to economic analysis. Even copyright law, which implicates a broader array of personal interests of the creator than patent law, may benefit from the application of the utilitarian framework to the extent that society seeks the production and diffusion of literary and artistic works. The utilitarian framework has been particularly central to the development of copyright law .

BANGLADESH INTELLECTUAL PROPERTY LAW Patent and Design Act, 1911 Application: Any person claiming to be the proprietor of any new or original design not previously published in Bangladesh may apply in the prescribed form for registration of design. A design when registered shall be registered as of the date of the application for registration and the Controller shall grant a certificate of registration to the proprietor of the design when the design registered. Specifications: A complete specification must particularly describe and ascertain the nature of the invention and the manner in which the same is to be performed. The specification must commence with the title, and in the case of a complete specification must end with a distinct statement of the invention claimed. The drawings can be supplied at any time before the acceptance of the application, but we suggest to file drawings at the time of application printed on tracing papers. Priority: In case of claiming priority the applicant must supply the certified copy of the foreign patent upon which the inventor is claiming priority. Filing requirements: To file application for registration of design we need the followings: (a) Name of the inventor (applicant), (b) Address(s) and nationality of the inventors, (c) Two sets of specifications of design, (d) Four sets of 3D pictures of the products from 4 sides (e) Power of Attorney, you can download the authorization from this web by clicking download forms. Copyright in Registered Designs: When a design is registered, the registered proprietor of the design shall have copyright in the design during five years from the Page | 18 Protection of Intellectual Property

date of registration and renewable for second and third period of every five years from the expiration of every five years. Advertisement on acceptance of application: On the acceptance of an application the Controller shall give notice thereof to the applicant and shall advertise the acceptance and with the drawings (if any) shall be open to public inspection. Opposition: Any person at any time within four months from the date of the advertisement of the acceptance of an application give notice at the Patent Office of opposition to the grant of the patent. The opponent must state the grounds of his opposition. Grant and sealing of Patent: If there is, no opposition a patent shall be granted, subject to such conditions as the authority thinks expedient, to the applicant, or in the case of a joint application to the applicants jointly, and the Controller shall cause the Patent to be sealed with the seal of the Patent Office. Term of Patent: The term limited in every patent for the duration thereof is sixteen years from its date and renewal is required after four years up to 15 years.

INTRODUCTION The nature of IP How you may create it? How to protect it? Page | 19 Protection of Intellectual Property

How to use IP belonging to others safely? How IP can be commercialized? and The importance of confidentiality. The nature of intellectual property is like an intangible asset. It helps the organization to create a good image. In each and every country there is some rules and regulation for the create and protecting intellectual property. In Bangladesh, the rules are in written format. One may need to register to have intellectual property. Intellectual property should be used in a safer manner. Each and every organization need a separate entity of intellectual property for the protection and to compete in the business. Intellectual property can be transferable by joint venture, franchising, licensing etc. intellectual property need a greater degree of confidentiality. If there is lack of communication and understanding then the confidentiality of intellectual property will be in a high risk.

INTELLECTUAL PROPERTY Intellectual property (IP) is legal property rights over creations of the mind, both artistic and commercial, and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; ideas, discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets. The majority of intellectual property rights provide creators of original works economic incentive to develop and share ideas through a form of temporary monopoly. Although many of the legal principles governing intellectual property have evolved over centuries, it was not until the late 20th century that the term intellectual property began to be used as a unifying concept. Intellectual property is divided into two groupings: Industrial property (patents, trademarks, industrial designs, and geographic indications of source) and Copyright (literary and artistic works) / Rights related to copyright.

Page | 20 Protection of Intellectual Property

IP

Trade Marks Patents Copyright Database Know-How Designs Rights Protect Protect Protects KELLOGG’S, Is any inventions 3D collections items secret, objects MARS, such for of or technical works designs asORANGE products written orinformation applied data works, and or(e.g. to them, results, BLUETOOTH diagrams, which processes. e.g. issamples valuable laboratory charts, are Theall or patient invention equipment computer andsuccessful identifiable, information) must source or the not design code, have trademarks. including which been photographs, ofhave a results, teapot thought been Theiror value of systematically music the before, experimental lies design or inmust even the onfact be that wallpaper. inventive arranged performances. techniques, they denote and They andmust are can the arise origin formulae, Copyright be automatically accessible and capable chemical quality arises of of or automatically electronically structures, the can products industrial be registered source or they once by relate your application. code other with idea/knowledge etc; to. means. the Trademarks not Patent Any strictly There one has has aisform been to can no Office. apply need of arise expressed IPto but tothe in automatically Intellectual equally permanent register. important. Property form. or canIt must Office be registered have to register involved with a some the Trade patent. element Marks of creation Registry andatskill theand not Patent copied Office. from elsewhere.

Patents Protect inventions for products or processes. The invention must not have been thought of before, must be inventive and must be capable of industrial application. You have to apply to the Intellectual Property Protection of Intellectual Property Office to register a patent. Patents last for 20 years.

Page | 21

Figure 1: Relationship among the components of Intellectual Property

Patents

Page | 22 Protection of Intellectual Property

Patents are, potentially, the most valuable type of IP. Patents protect inventions which relate to a product or a process to make a product. They arise particularly from research in medical, science, technology and engineering fields. Once a patent has been obtained, it offers the owner a ‘monopoly’ right. This means that only the owner, or someone else with the owner’s consent, can use the invention for commercial purposes. Say you have thought of an invention for a new type of tea bag, which can be used 50 times without losing any flavor! This invention will be patentable if: (1) it is not already public information anywhere in the world; (2) it is inventive; and (3) it is capable of industrial application (essentially any commercial, medical or other practical use). If you think your invention is potentially patentable it is essential that the details of the invention are kept secret until the application for the patent is made. If you disclose any detail of the invention before that the patent will be refused or be open to challenge in the future if granted. Disclosure may include publishing in a journal, presenting to students or even informing a colleague (who is not a fellow employee). Patents are a public policy tool: To promote and reward innovation. To disclose the invention, and make it available to society.

Know-How Know-How is not IP as such but can be just as valuable. What is Know-How? KnowHow is technical information, knowledge and skill e.g. a procedure, a process, an identifiable knowledgeable way of doing something. That information must be secret. R&D projects and course-work can result in extremely valuable technical information being created. The only way you can really protect your valuable Know-How is through confidentiality.

Copyright

Page | 23 Protection of Intellectual Property

Have you ever written a thesis, article, written up an experiment, drawn a diagram or even recorded a presentation you have given on DVD? All can be protected by copyright. There is also copyright in music, broadcasts, sound recordings, computer software, photographs, films and typographical arrangements of published editions. Copyright does not protect against 3D reproduction of items from industrial drawings or plans (e.g. models created from blueprints). They are instead protected by design rights or as registered designs. Copyright protects the form in which we express our idea and not the idea itself. For instance, the copyright in the written words of a thesis may belong to one person but the patent over the invention described in the thesis may belong to someone else. Unlike a patent, there is no need to register copyright in the UK; it arises automatically. All that is required is that the work must be original i.e. not copied from another source. There are different periods of duration for copyright, depending on the type of work. In respect of a written article, copyright would last for the life of the writer plus another 70 years. Works eligible for protection are: Literary works Musical works Artistic works Films Sound recording Broadcasts Derivative works Published editions

WHAT IS THE DURATION OF THE COPYRIGHT? Generally, copyright subsist during the life of the author plus 50 years after his death. However, if a work has not been published during the life time of the author, copyright in the work continue to subsist until the expiration of 50 years, following the year in which the work was first published. In the case of a work with joint authorship, the life of the author who dies last is used for calculating the copyright duration of the work.

Designs

Page | 24 Protection of Intellectual Property

Designs of or on 3-D objects can be protected by design rights which arise automatically or they can be registered. There are different types – UK registered and unregistered designs, and Community registered and unregistered designs. Community registered and unregistered designs offer protection throughout the EU, not just the UK. Each type is a little different in the criteria required for protection and the level of protection available.

Database Rights

Database Right protects a collection of independent works, data or other materials, which have been systematically or methodically arranged. They must also be accessible by electronic or other means. This obviously covers electronic databases, but could in theory cover biological materials collections, for instance. Like copyright, there is no need to register. However, the protection only lasts for 15 years from when the database was compiled.

Data Protection Principles: Fairly and lawfully processed. Processed for limited purposes. Adequate, relevant and not excessive. Accurate. Not kept longer than necessary. Processed in accordance with the data subjects’ rights. Secure. Not transferred to countries outside the European. Economics Area without adequate protection.

DATABASE PROTECTION IN THE UNITED STATES OF AMERICA The Electronic Frontier Foundation (EFF) has serious policy reservations about the extension of intellectual property protection to the contents of databases. Despite some recent statements implying the contrary, U.S. law is clear on the status of Page | 25 Protection of Intellectual Property

database protection. Though copyright-like protection for facts and data within databases has been considered in a variety of U.S. policy forums, it has been rejected. In fact, such a policy would be a radical departure from traditional U.S. intellectual property norms.

Trade Marks A trademark or trade mark, identified by the symbols ™ (not yet registered) and ® (registered), is a distinctive sign or indicator used by an individual, business organization or other legal entity to identify that the products and/or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks, which do not fall into these standard categories. The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand. The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States. It is difficult to avoid trademarks in day to day life. PEPSI, EASYJET, SHELL, GINSTERS, BLUETOOTH, SELFRIDGES, FHM, HMV are all examples. Trademarks denote the origin and the quality of the products they relate to. A wellknown trademark is often the most identifiable element of a successful product or service. They will often make a customer prefer one product over another. Selecting the trademark can therefore be crucial and so protection of it is fundamental. The most successful brands are often those that are completely distinctive, e.g. KODAK. Trademarks can be registered in the UK or throughout the EU and in other countries/regions. They can also arise automatically if a mark has been used and has consequently built a reputation. Unregistered trademarks are, however, more difficult to enforce. If you can, it is always better to register. A registered trade mark needs to be able to distinguish the goods or services of one person from those of another. It must be: Page | 26 Protection of Intellectual Property

distinctive, e.g. “MARS” for chocolate bars; it must not be descriptive of the goods or services to which it is applied e.g. you cannot register ‘BOOTS’ for shoes; and it must not be deceptive or contrary to public morality. Objections can be raised to a proposed trademark, by the owner of an existing identical or similar trademark registered for identical or similar goods or services. Trademarks are registered in different classes, which broadly distinguish different types of goods or services. Once registered it will initially last for 10 years, following which it can be renewed every 10 years. Well-known trade mark Well-known trademark status is commonly granted to famous international trademarks in less-developed legal jurisdictions. Countries are empowered to grant this status to marks that the relevant authority considers are 'well known'. In addition to the standard grounds for trade mark infringement (same/similar mark applied same/similar goods or services, and a likelihood of confusion), if the mark is deemed well known it is an infringement to apply the same or a similar mark to dissimilar goods/services where there is confusion, including where it takes unfair advantage of the well-known mark or causing detriment to it. Furthermore, a well-known trademark does not have to be registered in the jurisdiction in order to bring a trademark infringement action (equivalent to bringing a passing off claim without having to show goodwill and having a lesser burden of proof). It is therefore easier to use the well-known mark to oppose the use of other trademarks and to show infringement.

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Sale, transfer and licensing of trademarks In various jurisdictions, a trademark may be sold with or without the underlying goodwill, which subsists in the business associated with the mark. However, this is not the case in the United States, where the courts have held that this would "be a fraud upon the public". In the U.S., trademark registration can therefore only be sold and assigned if accompanied by the sale of an underlying asset. Examples of assets whose sale would ordinarily support the assignment of a mark include the sale of the machinery used to produce the goods that bear the mark, or the sale of the corporation (or subsidiary) that produces the trademarked goods. Most jurisdictions provide for the use of trademarks to be licensed to third parties. The licensor (usually the trademark owner) must monitor the quality of the goods being produced by the licensee to avoid the risk of trademark being deemed abandoned by the courts. A trademark license should therefore include appropriate provisions dealing with quality control, whereby the licensee provides warranties as to quality and the licensor has rights to inspection and monitoring. Limits and defenses to trademark Trademark is subject to various defenses and limitations. In the United States, the fair use defense protects uses that would be otherwise protected by the First Amendment. Fair use may be asserted on two grounds, either that the alleged infringer is using the mark to describe accurately an aspect of its products, or that the alleged infringer is using the mark to identify the mark owner. An example of the first type is that although Maytag owns the trademark "Whisper Quiet", makers of other products may describe their goods as being "whisper quiet" so long as these competitors are not using the phrase as a trademark. An example of the second type is that Audi can run advertisements saying that a trade publication has rated an Audi model higher than a BMW model, since they are only using "BMW" to identify the competitor. In a related sense, an auto mechanic can Page | 29 Protection of Intellectual Property

truthfully advertise that he services Cadillacs, and a former Playboy Playmate of the Year can identify herself as such on her website.

Protecting IP What can I do to help protect any IP, which I create?

Copyright There are no special formalities required to protect our work in the UK. This is not always the case in other countries. The good thing about copyright is that it arises automatically and it is free! However, as there is no register to refer to, this sometimes makes it difficult to prove ownership. Some practical tips to help overcome this and protect copyright are set out below:

Practical tips Keep all originals of your copyright work such as notes, drafts, sketches, drawings, videos etc. in a secure place. Record the date you created the copyright work: a good way to do this is put the work in an envelope, post it to yourself or somebody independent, such as a solicitor, and leave the envelope unopened. The postal stamp can be used to demonstrate the date before which it had been created. Place a copyright notice on the piece of work which will act as a useful reminder to anyone using the work that copyright exists and that action may be taken. Try inserting some irrelevant but intentional mistakes or anomalies in your work (e.g. a repeated line of source code, or an unusual spelling mistake). This can be a good way of illustrating Page | 30 Protection of Intellectual Property

that someone has copied your work if their work also includes the same mistake or anomaly. Protection of work on the internet is trickier as it is extremely difficult to police the internet effectively. Therefore, don’t publish anything on the internet that you or your university/institution would not wish to be copied. Perhaps just publish excerpts, and leave people to come back to you for the main work.

What are the benefits in protecting copyright and related rights? Copyright and related rights protection is an essential component in fostering human creativity and innovation. Giving authors, artists and creators incentives in the form of recognition and fair economic rewards increases their activities and output and often enhances the results. In addition, by insuring the existence and enforceability of rights, enterprises and companies can more easily invest in the creation, development, and global dissemination of works; this, in turn, helps increase access to, and enhances the enjoyment of, culture, knowledge, and entertainment all over the world, as well as stimulating economic and social development. How are copyright and related rights regulated? Copyright and related rights protection is obtained automatically without any need for registration or other formalities. However, many countries provide for a national system of optional registration and deposit of works; these systems facilitate, for example, questions involving disputes over ownership or creation, financing transactions, sales, assignments and transfers of rights.

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Patents Some practical tips to help protect your inventions, including how to register a patent are set out below:

Practical tips If you come up with a new invention, is it patentable? Consider whether your invention has been previously disclosed – e.g. look at existing patents, key word searches. Keep both originals and copies of all notes, reports, drawings, lab books etc. relating to the invention in a secure place. You should try to record as much detail as possible. Ensure all originals and copies are dated and are sufficiently detailed (and clear!) to identify the invention and how it works. Get your supervisor to sign and date laboratory notebooks on a regular basis. Keep the invention confidential. If you need to disclose any information, you should first speak to your supervisor If, having done your initial searches/investigations you still think your idea is patentable, let your supervisor know and contact your IP commercialization organization to set up a meeting. If it is decided to go ahead, a patent application can be drawn up, usually with the help of a patent agent, and filed at the Intellectual Property Office. Once filed, you can indicate on any relevant marketing literature, publications or products “Patent applied for, No. [NUMBER]”. Do not do this before you have filed, as it is illegal to do so.

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The Intellectual Property Office will perform a preliminary examination and search of the application to ensure the invention is new. The Intellectual Property Office would then send out a detailed search report and the application will be filed. However a full examination is then required during which the Intellectual Property Office will decide whether the application can be granted. This is a long, painstaking progress which can take 2 to 3 years.

What kind of protection does a patent offer? Patent protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. These patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party.

Designs Some practical tips to help protect your designs are set out below:

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Practical tips Keep all originals of your design drawings, sketches, samples, models and prototypes.

Keep all these materials in a secure location.

Record all dates of creation and the dates when you may have disclosed the design, e.g. at a trade fair or in any publication.

Contact your supervisor and/or IP commercialization organization who can help decide what type of protection is suitable and whether or not to apply for registration.

Why protect industrial designs? When an industrial design is protected, the owner – the person or entity that has registered the design – is assured an exclusive right against unauthorized copying or imitation of the design by third parties. This helps to ensure a fair return on investment. An effective system of protection also benefits consumers and the public at large, by promoting fair competition and honest trade practices, encouraging creativity, and promoting more aesthetically attractive products. How can industrial designs be protected? Page | 34 Protection of Intellectual Property

In most countries, an industrial design must be registered in order to be protected under industrial design law. As a rule, to be registrable, the design must be “new” or “original”. Different countries have varying definitions of such terms, as well as variations in the registration process itself. Generally, “new” means that no identical or very similar design is known to have existed before. Once a design is registered, a registration certificate is issued. Following that, the term of protection is generally five years, with the possibility of further periods of renewal up to, in most cases, 15 years. Depending on the particular national law and the kind of design, an industrial design may also be protected as a work of applied art under copyright law. In some countries, industrial design and copyright protection can exist concurrently. In other countries, they are mutually exclusive: once the owner chooses one kind of protection, he can no longer invoke the other. Under certain circumstances an industrial design may also be protectable under unfair competition law, although the conditions of protection and the rights and remedies ensured can be significantly different. How extensive is industrial design protection? Generally, industrial design protection is limited to the country in which protection is granted. Under The Hague Agreement Concerning the International Deposit of Industrial Designs, a WIPO-administered treaty, a procedure for an international registration is offered. An applicant can file a single international deposit with either WIPO or the national office of a country which is party to the treaty. The design will then be protected in as many member countries of the treaty as the applicant wishes.

Database Rights Some practical tips to help protect your database rights are set out below:

Practical tips Keep all your notes, records of telephone conversations and meetings, e-mails, contact details and other correspondence that you used to collect and compile the information contained in your database. Keep all your working drafts and original copies of your database in a secure place. If stored electronically ensure it is password protected.

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Record the date when you created the final database: again, a good way to do this is to put the work in an envelope unopened.

Place a copyright notice at the bottom of the database.

Insert some intentional but irrelevant mistakes or anomalies in the database.

Under these circumstances, protection of database rights is very much important. Otherwise, if the databases are in insecure then the company will fall in a great problem towards its competitors.

Trade Marks Some practical tips to help protect your trademarks are set out below:

Practical tips Consider in which countries you would want to protect your trade mark – i.e. where would the products or services be sold or used? Page | 36 Protection of Intellectual Property

Have a look on the Trade Marks section of the UK Intellectual Property Office website. Click on Trademarks and then ‘By mark text or image’. You can then have a look to see if there are any similar or identical trademarks already registered.

The same website contains details on how to register a trade mark. Contact your IP commercialization organization – they may be able to put you in contact with a Trade Mark Agent to help with the process.

Use the ™ symbol when your trademark is unregistered.

®

Use the symbol when the trademark is registered. DO NOT do this before it is registered. It can be a criminal offence to do so!

How extensive is trademark protection? Almost all countries in the world register and protect trademarks. Each national or regional office maintains a Register of Trademarks, which contains full application information on all registrations and renewals, facilitating examination, search, and potential opposition by third parties. The effects of such a registration are, however, limited to the country (or, in the case of a regional registration, countries) concerned. In order to avoid the need to register separately with each national or regional office, WIPO administers a system of international registration of marks. Two treaties, the Madrid Agreement Concerning the International, govern this system Registration of Marks and the Madrid Protocol. A person who has a link (through nationality, Page | 37 Protection of Intellectual Property

domicile, or establishment) with a country party to one or both of these treaties may, on the basis o a registration or application with the trademark office of that country, obtain an international registration having effect in some or all of the other countries of the Madrid Union.

Confidentiality Could your work or other information or results be useful to someone else if they ever got hold of it? Could any of your work be potentially patentable or registrable as a design? If the answer to any of these questions is yes, it is important to consider confidentiality. Confidentiality is the best way to protect your Know-How. What else can I do to protect the information?

Practical tips Consider whether confidential or sensitive information is accessible by other students or staff. Be careful about leaving information visible on desktops. If necessary, keep information in locked cabinets or use password security for electronic storage.

Keep a record of what has been disclosed during any meeting/conversation. If a batch of information is to be passed over, create a list of the information and, if possible, get the recipient to sign the list by way of acknowledgement.

Create some minutes or written record of conversations. This does not have to be overly formal. Something in bullet point form will suffice. A copy of this record can then be sent to the recipient.

If information is confidential then it never does any harm to mark it as such. It has the additional benefit of putting the recipient on notice of the confidentiality of the information and hopefully reminding them to treat it carefully. Don’t be afraid to tell the recipient you expect them to treat it carefully.

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Never disclose more information than is necessary. If an individual or company has refused to enter into a CDA, instead of disclosing specific details relating to an invention – just refer to the advantages the invention would offer the recipient. Whet their appetite. Hopefully they will then become interested to find out more and enter into a CDA.

Why promote and protect intellectual property? There are several compelling reasons. They are, First, the progress and well-being of humanity rests on its capacity for new creations in the areas of technology and culture. Second, the legal protection of these new creations encourages the expenditure of additional resources, which leads to further innovation. Third, the promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life. An efficient and equitable intellectual property system can help all countries realize intellectual property’s potential as a powerful tool for economic development and social and cultural well-being. The intellectual property system helps strike a balance between the interests of the innovator and the public interest, providing an environment in which creativity and invention can flourish, to the benefit of all.

HOW STRONGER PROTECTION OF INTELLECTUAL PROPERTY RIGHTS AFFECTS INTERNATIONAL TRADE FLOWS Intellectual property rights (IPRs) affect international trade flows when knowledgeintensive goods move across national boundaries. The importance of IPRs for trade has gained more significance as the share of knowledge-intensive or high technology products in total world trade has doubled between 1980 and 1994 from 12% to 24%. At the international level, IPRs have traditionally been governed by several conventions – most prominently the Paris Convention for patents and trademarks and Page | 39 Protection of Intellectual Property

the Berne Convention for copyright – that are administered by the World Intellectual Property Organization (WIPO). In the 1980s, mounting disputes over IPRs lead to the inclusion of trade-related IPRs on the agenda of the GATT/WTO Uruguay round and the resulting "Trade Related Intellectual Property Rights Agreement, including Trade in Counterfeit Goods" (TRIPs) of 1994 represents the most far-reaching multilateral agreement towards global harmonization of IPRs. Several studies have attempted to estimate the extent to which IPRs are trade-related. Maskus and Penubarti (1995) use an augmented version of the Helpman Krugman model of monopolistic competition to estimate the effects of patent protection on international trade flows. Their results indicate that higher levels of protection have a positive impact on bilateral manufacturing imports into both small and large developing economies.

A review of the economics of trade-related intellectual property rights The conventional economic rationale for the protection of IPRs in closed economies can be found in Arrow. Since knowledge is non-rival in nature, it should be freely available (apart from the cost of transmitting knowledge). If this were the case, however, the market would under invest in the production of new knowledge, because innovators would not be able to recover their costs. By granting innovators the exclusive rights to commercialize their intellectual assets over a certain period of time, IPRs offer an incentive for the production of knowledge. In short, IPRs introduce a static distortion (i.e., access to proprietary knowledge is sold above its marginal cost), which is rationalized as an effective way to foster the dynamic benefits associated with innovative activities. IPRs are territorial in character, that is, they are created by national laws and differ across countries. If intellectual property embedded in goods and services originating in country A crosses the border to country B, two questions arise. First, how will IPRs protection in country B affect the magnitude of the bilateral trade flow from country A to B; and second what are the implications of such protection on economic welfare of both countries A and B.

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CRITICISM Some critics of intellectual property, such as those in the free culture movement, characterize it as intellectual protectionism or intellectual monopoly and argue that the public interest is harmed by protectionist legislation such as copyright extension, software patents and business method patents. Although the term is in wide use, some critics reject the term intellectual property altogether. Richard Stallman argues that it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion." He claims that the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues." These critics advocate referring to copyrights, patents and trademarks in the singular and warn against abstracting disparate laws into a collective term. Other criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand, both in duration and in scope. The trend has been toward longer copyright protection (raising fears that it may someday be eternal). In addition, the developers and controllers of items of intellectual property have sought to bring more items under the protection. Patents have been granted for living organisms, and colors have been trademarked

Defense Defenders of strong intellectual property (IP) rights insist that legal protections are required to supply necessary incentive for the specific kind of innovation that supports economic development. Weakening intellectual property rights -- as the Federal Trade Commission (FTC) did in the mid 1970s with its consent decree against Xerox Corporation -- can compromise national competitiveness. The rapid rise of Japanese competitiveness, and failing competitiveness of US companies, can be linked to the compulsory licenses granted because of FTC actions against many of the United States' largest corporations. Foreign competitors gained virtually free access to the inventions of American companies, and the lack of legal protections for IP owners acted as a financial disincentive to invest in intellectual assets, which in turn led to a steady decline in American innovation and competitiveness. Between 1950 and 1980, Page | 41 Protection of Intellectual Property

Japanese companies consummated more than 35,000 foreign licensing agreements, mostly with U.S. companies, free or low-cost licenses made possible by the FTC and U.S. Department of Justice.

SUMMARY AND CONCLUSION With an increasing share of knowledge-intensive products in international trade and the inclusion of trade-related IPRs on the agenda of the GATT/WTO, IPRs have become an important trade issue. Political economy considerations -- as reflected in the TRIPS Agreement .Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; ideas, discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets-- favor higher standards of IPRs protection. Sometimes, some organizations can achieve their apex position only with the help of their correct choice of intellectual property. That is why it is very much essential for any organization in the world to protect their intellectual property as correctly as possible. Nevertheless, there must be the involvement of the government of the respective organization. Otherwise, it is must that business cannot go far and cannot reach their own goals and objectives.

REFERENCE 1. UK Intellectual Property Office website (www.ipo.gov.uk) 2. Esp@cenet Patent website (http://gb.espacenet.com) 3. European Patent Office website (www.epo.org) 4. European IP Helpdesk (www.cordis.lu/ipr-

helpdesk/en/home.html) 5. US Patent and Trademark Office (www.uspto.uk) 6. UK Company Searches (www.companies-house.gov.uk) 7. www.biplobd.com

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