How do enterprises protect their intellectual property rights actively?
- Thứ năm - 07/05/2020 00:14
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Intellectual Property Rights (IP Rights) are understood as ownership rights to products created by human creativity. From a legal perspective, Intellectual Property Rights means the rights of an organization or individual to intellectual property including Copyright, Copyright-related rights, Industrial Property Rights, and Rights to plant varieties. In the current trend of economic development and integration, Enterprises, which are big or small, when engaging in production and business activities, are all related to IP Rights, especially Industrial Property Rights. Besides, in the world, many companies and corporations have become extremely famous and developed thanks to the effective exploitation of the intellectual property, such as Microsoft, Coca Cola, Disney, McDonald's, etc. and this proves that the intellectual property plays a significant role in the existence and development of Enterprises. Therefore, it is essential for Enterprises to protect IP Rights. So, how do Enterprises protect their IP Rights actively? The following article will give you answers.
1. Identifying and determining intellectual property
Enterprises need to identify the intellectual property that they own and determine what kind of the intellectual property it is. This is a significant step. Why is that? Accordingly, the way to establish ownership and conditions of protection for each type of intellectual property is different. For example, Copyright is automatically protected from the time the work is created and expressed in a certain material form without having to register it with a competent authority. Meanwhile, the Rights to plant varieties and the Industrial Property Rights to Trademarks, Industrial Designs, Inventions, and Layout Designs are established only based on a decision issued by the competent authority. Enterprises need to understand the legal nature of their intellectual property to provide sufficient protection. Typically, the intellectual property owned by Enterprises includes Copyright; Copyright related-rights and Industrial Property Rights to Inventions, Industrial Designs, Trademarks, and Trade Name.
2. Registration of IP Rights
What types of intellectual property should Enterprises register for IP Rights? As analyzed above, there are several types of intellectual property that Enterprises are required to register with the competent authority to establish ownership rights. However, this does not mean that for other non-mandatory intellectual property, Enterprises do not need to register IP Rights, such as Copyright and Copyright related-rights. Accordingly, Enterprises should register Copyright and Copyright related-rights because protection titles will be the most compelling evidence and help Enterprises save high costs and time if there is a dispute happens.
The next important issue is that when it is appropriate for Enterprises to register for IP Rights? The answer is that based on the conditions and period of protection of each type of intellectual property, and Enterprises will determine the time of registration to be effective and suitable for their business purposes. For example, a mark is protected if it meets the following conditions: (i) It is a visible sign in the form of letters, words, drawings, or images, including holograms, or a combination thereof, represented in one or more colours. (ii) It is capable of distinguishing goods or services of the mark owner from those of other subjects. Accordingly, at Point e, Clause 2, Article 74 of the Law on Intellectual Property prescribes a case where a mark is deemed indistinguishable as follows: ”2. A mark shall be deemed to be indistinctive if it is a sign falling into one of the following categories: Signs other than integrated marks which are identical with or confusingly similar to registered marks of identical or similar goods or services based on applications for registration with earlier filing dates or priority dates, as applicable, including applications for registration of marks filed according to a treaty of which the Socialist Republic of Vietnam is a member;”. With such provisions, if there are many trademark applications with signs that are identical or confusingly similar to each other for the identical or similar goods or services, the application for registration with earlier filing dates or priority dates will be granted a protection title. Therefore, Enterprises should register their trademarks as soon as possible, it is best to register them before putting into use. Another example is about Industrial Designs and Inventions. Under Article 58 and Article 63 of the Law on Intellectual Property, one of the conditions for the protection of Industrial Designs and Inventions is to be new. Therefore, Enterprises should register for the protection of Industrial Designs and Inventions before producing or releasing products to the market.
3. Application of self-protection rights
To protect IP Rights, it is not enough for Enterprises to register IP Rights because other entities can still infringe on the intellectual property after being designated for ownership. Under the provisions of Clause 1, Article 198 of the Law on Intellectual Property, and Enterprise has the right to apply the following measures to protect its IP rights:
- To apply technological measures to prevent acts of infringement of IP Rights;
Enterprises need to identify the intellectual property that they own and determine what kind of the intellectual property it is. This is a significant step. Why is that? Accordingly, the way to establish ownership and conditions of protection for each type of intellectual property is different. For example, Copyright is automatically protected from the time the work is created and expressed in a certain material form without having to register it with a competent authority. Meanwhile, the Rights to plant varieties and the Industrial Property Rights to Trademarks, Industrial Designs, Inventions, and Layout Designs are established only based on a decision issued by the competent authority. Enterprises need to understand the legal nature of their intellectual property to provide sufficient protection. Typically, the intellectual property owned by Enterprises includes Copyright; Copyright related-rights and Industrial Property Rights to Inventions, Industrial Designs, Trademarks, and Trade Name.
2. Registration of IP Rights
What types of intellectual property should Enterprises register for IP Rights? As analyzed above, there are several types of intellectual property that Enterprises are required to register with the competent authority to establish ownership rights. However, this does not mean that for other non-mandatory intellectual property, Enterprises do not need to register IP Rights, such as Copyright and Copyright related-rights. Accordingly, Enterprises should register Copyright and Copyright related-rights because protection titles will be the most compelling evidence and help Enterprises save high costs and time if there is a dispute happens.
The next important issue is that when it is appropriate for Enterprises to register for IP Rights? The answer is that based on the conditions and period of protection of each type of intellectual property, and Enterprises will determine the time of registration to be effective and suitable for their business purposes. For example, a mark is protected if it meets the following conditions: (i) It is a visible sign in the form of letters, words, drawings, or images, including holograms, or a combination thereof, represented in one or more colours. (ii) It is capable of distinguishing goods or services of the mark owner from those of other subjects. Accordingly, at Point e, Clause 2, Article 74 of the Law on Intellectual Property prescribes a case where a mark is deemed indistinguishable as follows: ”2. A mark shall be deemed to be indistinctive if it is a sign falling into one of the following categories: Signs other than integrated marks which are identical with or confusingly similar to registered marks of identical or similar goods or services based on applications for registration with earlier filing dates or priority dates, as applicable, including applications for registration of marks filed according to a treaty of which the Socialist Republic of Vietnam is a member;”. With such provisions, if there are many trademark applications with signs that are identical or confusingly similar to each other for the identical or similar goods or services, the application for registration with earlier filing dates or priority dates will be granted a protection title. Therefore, Enterprises should register their trademarks as soon as possible, it is best to register them before putting into use. Another example is about Industrial Designs and Inventions. Under Article 58 and Article 63 of the Law on Intellectual Property, one of the conditions for the protection of Industrial Designs and Inventions is to be new. Therefore, Enterprises should register for the protection of Industrial Designs and Inventions before producing or releasing products to the market.
3. Application of self-protection rights
To protect IP Rights, it is not enough for Enterprises to register IP Rights because other entities can still infringe on the intellectual property after being designated for ownership. Under the provisions of Clause 1, Article 198 of the Law on Intellectual Property, and Enterprise has the right to apply the following measures to protect its IP rights:
- To apply technological measures to prevent acts of infringement of IP Rights;
- Displaying indicative information on the origin of emergence, protection title, owner, scope and period of protection and other information on IP Rights on products, means of services, the originals, and copies of works, fixations of performances, phonograms, video recordings or broadcasts (collectively referred to like products in this Article) to inform that the products are protected IP Right subject matters and warn that they should not be infringed upon;
- Using technical means or measures to mark, identify, distinguish, and protect the protected products.
- To request any organization or individual who commits acts of infringement of IP Rights of to terminate such acts, make a public apology or rectification, and pay damages by sending written notices to the infringes;
- To request the competent authority to deal with acts of infringement of IP Rights in accordance with the provisions of the Law on Intellectual Property and other relevant laws;
- To initiate a lawsuit at a court or a claim at an arbitration centre to protect its legitimate rights and interests.
- To request the competent authority to deal with acts of infringement of IP Rights in accordance with the provisions of the Law on Intellectual Property and other relevant laws;
- To initiate a lawsuit at a court or a claim at an arbitration centre to protect its legitimate rights and interests.