Any form of property which is concerned with any fundamental creation of human intellect such as artistic, literary, technical, or scientific constructions may be defined as Intellectual Property (IP).
Consequently, Intellectual Property Rights (IPR) cover those legal rights which are conferred upon an inventor or a manufacturer with the aim of safeguarding their inventions or manufactured products. Such legal rights grant an exclusive right on the inventor or manufacturer or its operator who completely utilizes his invention or product for a limited period of time. A significant portion of the developments that have occurred in recent years may be traced to the growing junction of IPR and International Trade. In practically every country, there has been a massive shift in IP Law and policies pertaining to the same.
This growing worldwide flow of goods has resulted in the establishment of a virtual global market that includes practically all countries and is based on a strong trading system coupled with positive international relations.
This article on Overseas Intellectual Property Protection delves into the deeper aspects of the IPR exercised globally and the need for comprehensive laws to govern various IPRs worldwide.
GLOBAL IPR PRACTICES
Over the years, several international organizations, conventions, and treaties have made significant contributions to the development of IP. The rules and norms established by such international organizations, treaties, and conventions are being followed by many nations around the globe. The most important international instruments concerned with the development of IPR are discussed hereunder:
1. Trade-Related Aspects of Intellectual Property Rights
The World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all WTO members. The TRIPS Agreement was enforced on January 1, 1995, as part of the World Trade Organization (WTO) Agreement. The Agreement is inclusive of all types of IP and endeavors to harmonize and strengthen standards of protection and imparts effective enforcement at both national and international levels. The commitments under TRIPS apply equally to all member nations. The three main features of the TRIPS Agreement are: Standard, Enforcement, and Dispute Settlement.
Countries that have signed the agreement are required to make attempts to adopt these requirements, and can actually give more protection than is required. However, developing nations were permitted to take additional time to enforce the applicable changes to their national laws in two tiers of transition in accordance with their level of development.
2. World Intellectual Property Organization
The World Intellectual Property Organization (WIPO) is one of the specialized agencies of the United Nations. The main objective of the organization is to develop a balanced and accessible international system of IP, which rewards creativity, promotes innovation, and makes significant contributions to economic growth while protecting the interest of the public. It was instituted by the WIPO Convention in the year 1967 with a mandate from its Member Nations to further the protection of IP throughout the entire world through cooperation among nations and in collaboration with other international institutions.
3. The Paris Convention for the Protection of Industrial Property
The Paris Convention was brought into existence to bestow international consonance with respect to IP laws and was adopted in 1883, at Paris and enforced in 1884. It lays fundamental guidelines for the protection of IP such as patents, utility models, industrial designs, trademarks, service marks, tradenames, sources of information or signs of appeal, and a few provisions to address the issues of harassment and national treatment of unfair competition.
Under this convention, a member nation is authorized to confer nationals of other member countries with equal protection and advantages as it grants to its own nationals in accordance with the anti-discrimination principle. This policy of the convention is also a basic principle of many other agreements and treaties pertaining to IP.
4. The Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention, first accepted at Berne in 1886 is based on three fundamental principles and consists of a set of provisions that determine the minimum protection to be granted, as well as special provisions accessible to developing nations.
The three basic principles are as follows:
- Works emanating in one of the contracting States must be provided the same protection in each of the other contracting States as the latter provides to the works of its own nationals.
- Such protection must not be subject to compliance with any formality.
- Such protection is not concerned with the existence of protection in the nation of origin of the work. However, if a contracting State grants a lengthier term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may not be granted once protection in the country-of-origin ceases.
Furthermore, the Berne Convention also deals with “moral rights”, i.e., the right to claim authorship of the work and the right to object to any desecration or deformation or other moderation of, or other derogatory action pertaining to, the work which would be detrimental to the author’s reputation.
5. Madrid Agreement Concerning the International Registration of Marks
The Madrid Protocol provides the owner of a trademark the prospect to have his trademark safeguarded in several member nations by simply filing one application directly with the national or regional trademark office of his own nation. It enables the obtaining of protection for marks (trademarks and service marks) and from the date of the international registration, the protection of the mark in each of the designated contracting parties is the same as if the mark had been the subject matter of an application for registration filed directly with the Office of that contracting party.
As international registration is equivalent to a bundle of national registrations, the subsequent management of that protection is made much easier. As a result of the international registration, there is only one registration to renew, and changes such as a change in ownership or in the name or address of the holder, or a limitation of the list of goods and services, can be recorded in the international register through a single procedural step.
6. Patent Cooperation Treaty
The Patent Cooperation Treaty was concluded in 1970. It extends to States which are party to the Paris Convention for the Protection of Industrial Property, 1883. The Patent Cooperation Treaty makes it feasible to seek patent protection for an invention simultaneously in each of a large number of nations by filing an international patent application. The application may be filed by any person who is a national or a resident of a contracting State, with the national patent office of the contracting State of which the applicant is a national or resident or, at the applicant’s choice, with the International Bureau of WIPO in Geneva. Also, the treaty regulates in detail the formal requirements which must be complied with by any international application.
INDIAN IPR SYSTEM
Without disclosure, the term “true and first inventor” has no meaning, because there is no benefit to society as a whole, and it is as if the invention never happened in the first place. As a result, simply having an idea is worthless.
The Indian Intellectual Property Law is based on the First-to-File (FTF) system. A convention application is a patent application filed in the Patent Office that claims a priority date based on the same or substantially similar application filed in one or more of the convention countries.
To obtain convention status, an applicant must file an application with the Indian IPR Office within 12 months of the date of invention.
How to ensure Overseas IPR Protection?
Almost every nation has its own IP Laws, while anyone seeking an IPR in that nation must file an application for a respective IPR in that nation by following the nation’s procedures. In each country, local laws govern trademarks, copyrights, and other types of intellectual property.
- For trademark protection internationally, individuals or firms from foreign nations can register their trademarks in nations that have signed the “Madrid Protocol”. An overseas application must be based on a previously filed or registered trademark.
- International countries can seek patent protection through the Patent Cooperation Treaty (PCT).
- Through the submission of a single worldwide application, the Hague System for the International Registration of Industrial Designs provides a realistic business solution for registering up to 100 designs in 74 contracting parties spanning across 91 countries.
- In all countries that have signed the Berne Convention, copyright protection is automatic. There are two types of rights that can be exercised: economic rights, which allow the rights owner to profit financially from others’ use of his work; and moral rights, which safeguard the author’s non-commercial interests.
What is First to File System?
An individual’s right to obtain patent protection is determined by the FTF and First-to-Invent (FTI) systems. The party who files for a patent for a given invention first, regardless of the date of an actual invention, is eligible for a patent grant for that invention under the FTF system.
When many applicants file patent applications claiming the same subject matter under the FTI system, the patent office initiates the required process to establish who the first to innovate was.
In most countries, the FTF system is applied in India, Japan, China, European Union, Canada, the Philippines, and the United States. They were among the few nations that used FTI systems, but starting from 1989 and by 2013, they all moved to FTF systems.
First to File vs. First to Invent
The previous system, which was the FTI system, had its advantages. It was seen to be more equitable and loyal to the original objective of the patent system. Proponents of FTF say that it helps larger corporations with the resources (lawyers and money) to file a high number of patent applications. Furthermore, the expense of timely submission of patent applications may be prohibitive to small innovators in general.
The move to FTF offers a number of clear advantages. To begin, it aligns the countries with the majority of the international community, considerably simplifying international patent law and enforcement interactions. This is important to remember because it is most likely the main reason for the transition in the first place.
Need for Timely Filing of Trademark Application in FTF Complying Countries
- When an innovation exists, it is critical to file it as early as possible. Many applications take time to be accepted, but the first person to submit for a patent is generally the innovator who will benefit from the Intellectual Property Rights. Experts in the field of IP patents advise against waiting to file.
- There will be a flux of thoughts and reductions to practice with any invention. The ideal strategy is to submit as soon as possible when innovation is handy that can be adequately described in words and pictures.
IP protection is critical since it allows the company to differentiate itself from rivals, be sold or licensed for a significant cash stream, and be used as collateral for loans. Consumers can make informed decisions regarding the safety, dependability, and efficacy of their products. IP rights are also enforced to guarantee that items are genuine and of the high quality that consumers demand.
As a result, IP contributes to the trust and peace of mind that customers and markets require. The protection of IP is essential for supporting innovation. Businesses and individuals would not realize the full advantages of their discoveries if ideas were not protected, and they would spend less time on research and development.
It would be appropriate to conclude that each one of the international instruments has made a significant contribution towards the development of IPR on an international level. These instruments have urged nations to look beyond their national rules and regulations pertaining to IPR, which has further resulted in the establishment of an international IPR regime that grants equal and consistent protection to IP throughout the world irrespective of the local laws of any nation.
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