Introduction to intellectual property rights

Intellectual Property is a product or process that arises from the human intellect or mind. It is a result of human creation.

Intellectual property protects applications of ideas and information that are of commercial value. They are rights to stop others from doing certain things such as pirating, creating counterfeits, and imitations.

The rationale for protection of intellectual property is to stimulate and promote further creativity.

Importance of Intellectual Property

Intellectual property has long been recognized and used by industrialized countries, and some developing countries, as an important tool of technological and economic development. Many developing countries are becoming increasingly aware that it is in their best interests to establish national industrial property systems, where they do not exist, and to strengthen and upgrade existing systems which, inherited from their historical past, are no longer adequately responding to new needs and priorities.

Countries have laws to protect intellectual property for two main reasons.  One is to give statutory expression to the moral and economic rights of creator for their creations and the other is to promote, as a deliberate act of government policy, creativity and to encourage fair-trading.  This contributes to economic and social development.

Rights Conferred

The owner of the intellectual property right has the right to prevent any person from exploiting the protected property by any of the following acts­

  • making, importing, offering for sale, selling and using the property; or
  • stocking such product for the purposes of offering it for sale, selling or using the property.

In return for the grant of a patent, for example, the inventor places the technological information surrounding the invention in the public domain. This is achieved by publishing a patent document. Any invention, which is not protected in a given country, is considered as being in the public domain in that country. Such invention could be used in that country for its own technology development without the risk of infringement.

The duration of a patent is usually limited to twenty years.

Once this period has expired, all third parties may use the information and thus exploit the invention.

Protection Procedures

Inventions

A patent is granted by a national patent office or by a regional office that does the work for a number of countries, such as the European Patent Office (EPO).
A patent describes an invention for which the inventor claims the exclusive right.
Invention is a new solution to a “technical” problem. This may be a product, process or new use of an existing product.
–   It must be new
–   Have an inventive step
–   Be industrially applicable

Application Procedure for a patent

•Application (Application Form, Application fees, Patent document, Power of attorney if represented by agent)
•Patent document (Title, field of technology, background art, brief description, detailed description together with drawings, claims, and an abstract)
•Search/Substantive examination
•Publication
•Grant of the Patent
•Priority – 12 months

Utility Model

A utility model is an invention that can be utilized in industry, agriculture, education services or environmental conservation and which relates to shape, structure or assemblages of articles.
–   It must be new
–   Be industrially applicable

Industrial Design

Industrial Design is the ornamental or aesthetic aspect of a useful article of industry. The aspect that gives special appearance to a product of industry.

Application Procedure for an Industrial Design

•Application form
•Application fees
•Representation of the design (photo, drawing etc)
•Comparison with existing designs
•Publication (opposition period 60 days)
•Registration
•Priority 6 months

Trade marks

A trade mark is a registered design or name used to identify a manufacturer’s goods.

Trade marks have become more and more important in recent years.  Kenya Industrial Property Institute, the official body for registration of trade and service marks in Kenya, is mandated by the Trademarks Act Cap. 506, (As last amended by the Trade Marks (Amendment) Act, 2002), of the Laws of Kenya to give protection to trade marks and service marks.

A trade mark can take many forms.  The law states that a trade mark may be any symbol that is capable of identifying a company’s goods or services.  It can be a word, a picture or a combination of both.  For example “PHILIPS” is protected as a word trade mark.  An example of a picture protected as a trade mark is BP Shell’s red and yellow seashell.  The name “Florida Casino” together with the stylised (letters in italics) is a combined trade mark comprising a word and a picture.

Colours (think of the yellow Kodak trade mark), combinations of numbers and letters (such as Q8, 4711, AKZO) and drawings or shapes (such as the Adidas stripe or the Coca-Cola bottle) are also considered trade marks.

It is impossible to imagine life today without trade marks.  Not only are trade marks necessary to differentiate products or services from each other, but often they have an important expressive or even emotional value as well.  The use of trade marks is particularly important in advertisement as a strategy for marketing.

Trade marks help consumers to distinguish the products of one proprietor from those of others in the market place.  More usually they associate the trade mark with the reputation (quality) of goods emanating from the proprietor.

Creating a product usually involves major investments, hence the need for the product to be protected.  The Trade Marks Act helps the producer protect the trade mark. Registering a trade mark is an important first step for everyone towards safeguarding a Trade mark and combating imitations. Application for registration of a trade mark can be done directly at the Institute or at the place of a trade mark specialist authorised as a representative.

Copyrights

Registration of copyright is based on non-formality provision under the Bern Convention of 1883 for protection of literary and artistic works. Copyright protection is borne by simply expressing the original idea in a fixed form. 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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