What is Intellectual Property?

WORLDINTELLECTUAL

PROPERTYORGANIZATION

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Table of Contents

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What is Intellectual Property? 2

What is a Patent? 5

What is a Trademark? 8

What is an Industrial Design? 12

What is a Geographical Indication? 14

What are Copyright 18and Related Rights?

What is the World Intellectual 22Property Organization?

What is Intellectual Property?

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What is intellectual property?

Intellectual property refers tocreations of the mind: inventions,literary and artistic works, andsymbols, names, and images usedin commerce. Intellectual propertyis divided into two categories:

Industrial Property includespatents for inventions,trademarks, industrial designsand geographical indications.

Copyright includes literaryworks such as novels, poems and plays, films,musical works, artistic works such as drawings,paintings, photographs andsculptures, and architecturaldesigns. Rights related tocopyright include those ofperforming artists in theirperformances, producers ofphonograms, and those ofbroadcasters in their radioand television programs.

What isintellectualproperty?

What are intellectual property rights?

Intellectual property rights are likeany other property rights – theyallow the creator, or owner, of apatent, trademark, or copyright tobenefit from his or her own workor investment. These rights areoutlined in Article 27 of theUniversal Declaration of HumanRights, which sets forth the rightto benefit from the protection of moral and material interestsresulting from authorship of any scientific, literary, orartistic production.

The importance of intellectualproperty was first recognized inthe Paris Convention for theProtection of Industrial Property in1883 and the Berne Conventionfor the Protection of Literary andArtistic Works in 1886. Bothtreaties are administered by theWorld Intellectual PropertyOrganization (WIPO).

Why promote and protectintellectual property?

There are several compellingreasons. First, the progress andwell-being of humanity rests on itscapacity for new creations in theareas of technology and culture.Second, the legal protection ofthese new creations encouragesthe expenditure of additionalresources, which leads to furtherinnovation. Third, the promotionand protection of intellectualproperty spurs economic growth,creates new jobs and industries,and enhances the quality andenjoyment of life.

An efficient and equitableintellectual property system canhelp all countries realizeintellectual property’s potential asa powerful tool for economicdevelopment and social andcultural well-being. The intellectualproperty system helps strike abalance between the interests ofthe innovator and the publicinterest, providing an environmentin which creativity and inventioncan flourish, to the benefit of all.

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How does the average person benefit?

Intellectual property rights rewardcreativity and human endeavor,which fuel the progress ofhumankind. Some examples:

The multi-billion dollar film,recording, publishing, andsoftware industries, whichbring pleasure to millions ofpeople in all parts of theworld, would not existwithout copyright protection;

Consumers would have nomeans to confidently buyproducts or services withoutreliable, internationaltrademark protection andenforcement to discouragecounterfeiting and piracy;

Without the rewards providedby the patent system,researchers and inventorswould have little incentive tocontinue producing betterand more efficient productsfor consumers worldwide.

What is a patent?

What is a patent?

A patent is an exclusive rightgranted for an invention, which is a product or a process thatprovides a new way of doingsomething, or offers a newtechnical solution to a problem.

A patent provides protection forthe invention to the owner of thepatent. The protection is grantedfor a limited period, generally 20 years.

What kind of protection does a patent offer?

Patent protection means that theinvention cannot be commerciallymade, used, distributed or soldwithout the patent owner’sconsent. These patent rights areusually enforced in a court, which,in most systems, holds theauthority to stop patentinfringement. Conversely, a courtcan also declare a patent invalidupon a successful challenge by a third party.

What rights does a patent owner have?

A patent owner has the right todecide who may – or may not –use the patented invention for theperiod in which the invention isprotected. The patent owner maygive permission to, or license,other parties to use the inventionon mutually agreed terms. Theowner may also sell the right tothe invention to someone else,who will then become the newowner of the patent. Once apatent expires, the protectionends, and an invention enters thepublic domain, that is, the ownerno longer holds exclusive rights to

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the invention, which becomesavailable to commercialexploitation by others.

Why are patents necessary?

Patents provide incentives toindividuals by offering themrecognition for their creativity andmaterial reward for their marketableinventions. These incentivesencourage innovation, whichassures that the quality of humanlife is continuously enhanced.

What role do patents play in everyday l i fe?

Patented inventions have, in fact,pervaded every aspect of humanlife, from electric lighting (patentsheld by Edison and Swan) andplastic (patents held byBaekeland), to ballpoint pens(patents held by Biro) andmicroprocessors (patents held byIntel, for example).

All patent owners are obliged, inreturn for patent protection, topublicly disclose information ontheir invention in order to enrich

the total body of technicalknowledge in the world. Such anever-increasing body of publicknowledge promotes furthercreativity and innovation in others.In this way, patents provide notonly protection for the owner butvaluable information andinspiration for future generationsof researchers and inventors.

How is a patent granted?

The first step in securing a patentis the filing of a patentapplication. The patent applicationgenerally contains the title of theinvention, as well as an indicationof its technical field; it mustinclude the background and adescription of the invention, inclear language and enough detailthat an individual with an averageunderstanding of the field coulduse or reproduce the invention.Such descriptions are usuallyaccompanied by visual materialssuch as drawings, plans, ordiagrams to better describe theinvention. The application alsocontains various “claims”, that is,information which determines theextent of protection granted by the patent.

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What kinds of inventionscan be protected?

An invention must, in general,fulfill the following conditions tobe protected by a patent. It mustbe of practical use; it must showan element of novelty, that is,some new characteristic that isnot known in the body of existingknowledge in its technical field.This body of existing knowledgeis called “prior art”. Theinvention must show an inventivestep that could not be deducedby a person with averageknowledge of the technical field.Finally, its subject matter must beaccepted as “patentable” underlaw. In many countries, scientifictheories, mathematical methods,plant or animal varieties,discoveries of natural substances,commercial methods, or methodsfor medical treatment (asopposed to medical products) are generally not patentable.

Who grants patents?

A patent is granted by a nationalpatent office or by a regionaloffice that does the work for anumber of countries, such as theEuropean Patent Office (EPO) andthe African Intellectual PropertyOrganization (OAPI). Under suchregional systems, an applicantrequests protection for theinvention in one or morecountries, and each countrydecides as to whether to offerpatent protection within itsborders. The WIPO-administeredPatent Cooperation Treaty (PCT)provides for the filing of a singleinternational patent applicationwhich has the same effect asnational applications filed in thedesignated countries. Anapplicant seeking protection mayfile one application and requestprotection in as many signatorystates as needed.

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What is a trademark?

A trademark is a distinctive sign,which identifies certain goods orservices as those produced orprovided by a specific person orenterprise. Its origin dates back toancient times, when craftsmenreproduced their signatures, or“marks” on their artistic orutilitarian products. Over theyears these marks evolved intotoday’s system of trademarkregistration and protection. Thesystem helps consumers identifyand purchase a product or servicebecause its nature and quality,indicated by its uniquetrademark, meets their needs.

What is atrademark?

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What does a trademark do?

A trademark provides protectionto the owner of the mark byensuring the exclusive right to useit to identify goods or services, orto authorize another to use it inreturn for payment. The period ofprotection varies, but a trademarkcan be renewed indefinitely onpayment of corresponding fees.Trademark protection is enforcedby the courts, which in mostsystems have the authority toblock trademark infringement.

In a larger sense, trademarkspromote initiative and enterpriseworldwide by rewarding theowners of trademarks withrecognition and financial profit.Trademark protection also hindersthe efforts of unfair competitors,such as counterfeiters, to usesimilar distinctive signs to marketinferior or different products orservices. The system enablespeople with skill and enterprise toproduce and market goods andservices in the fairest possibleconditions, thereby facilitatinginternational trade.

What kinds of trademarkscan be registered?

The possibilities are almostlimitless. Trademarks may be oneor a combination of words, letters,and numerals. They may consist of drawings, symbols, three-dimensional signs such as theshape and packaging of goods,audible signs such as music orvocal sounds, fragrances, or colorsused as distinguishing features.

In addition to trademarksidentifying the commercial sourceof goods or services, several othercategories of marks exist.Collective marks are owned by anassociation whose members usethem to identify themselves with alevel of quality and otherrequirements set by theassociation. Examples of suchassociations would be thoserepresenting accountants,engineers, or architects.Certification marks are given forcompliance with definedstandards, but are not confined toany membership. They may begranted to anyone who can certify

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that the products involved meetcertain established standards. Theinternationally accepted “ISO9000” quality standards are anexample of such widely recognizedcertifications.

How is a trademarkregistered?

First, an application for registrationof a trademark must be filed withthe appropriate national orregional trademark office. Theapplication must contain a clearreproduction of the sign filed forregistration, including any colors,forms, or three-dimensionalfeatures. The application mustalso contain a list of goods orservices to which the sign wouldapply. The sign must fulfill certainconditions in order to be protected

as a trademark or other type ofmark. The trademark must bedistinctive, so that consumers candistinguish it from othertrademarks identifying otherproducts, as well as identify aparticular product with it. It mustneither mislead nor deceivecustomers or violate public orderor morality.

Finally, the rights applied forcannot be the same as, or similarto, rights already granted toanother trademark owner. Thismay be determined throughsearch and examination by thenational office, or by theopposition of third parties whoclaim similar or identical rights.

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How extensive is trademark protection?

Almost all countries in the worldregister and protect trademarks.Each national or regional officemaintains a Register of Trademarkswhich contains full applicationinformation on all registrationsand renewals, facilitatingexamination, search, and potentialopposition by third parties. Theeffects of such a registration are,however, limited to the country(or, in the case of a regionalregistration, countries) concerned.

In order to avoid the need toregister separately with eachnational or regional office, WIPOadministers a system ofinternational registration of marks.This system is governed by twotreaties, the Madrid AgreementConcerning the International

Registration of Marks and theMadrid Protocol. A person whohas a link (through nationality,domicile, or establishment) with acountry party to one or both ofthese treaties may, on the basis ofa registration or application withthe trademark office of thatcountry, obtain an internationalregistration having effect in someor all of the other countries of theMadrid Union.

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What is an industrial design?

An industrial design is theornamental or aesthetic aspect ofan article. The design may consistof three-dimensional features,such as the shape or surface of an article, or of two-dimensionalfeatures, such as patterns, lines or color.

Industrial designs are applied to awide variety of products ofindustry and handicraft: fromtechnical and medical instrumentsto watches, jewelry, and otherluxury items; from housewaresand electrical appliances tovehicles and architecturalstructures; from textile designs toleisure goods.

To be protected under mostnational laws, an industrial designmust be new or original and non-functional. This means that anindustrial design is primarily of anaesthetic nature and any technicalfeatures of the article to which it isapplied are not protected.

What is an industrialdesign?

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Why protect industrial designs?

Industrial designs are what makean article attractive and appealing;hence, they add to the commercialvalue of a product and increase its marketability.

When an industrial design isprotected, the owner – the personor entity that has registered thedesign – is assured an exclusiveright against unauthorized copyingor imitation of the design by thirdparties. This helps to ensure a fairreturn on investment. An effectivesystem of protection also benefitsconsumers and the public at large,by promoting fair competition andhonest trade practices,encouraging creativity, andpromoting more aestheticallyattractive products.

Protecting industrial designs helpseconomic development, byencouraging creativity in theindustrial and manufacturingsectors, as well as in traditionalarts and crafts. They contribute tothe expansion of commercialactivities and the export ofnational products.

Industrial designs can be relativelysimple and inexpensive to develop

and protect. They are reasonablyaccessible to small and medium-sized enterprises as well as toindividual artists and craftsmen, in both industrialized anddeveloping countries.

How can industrial designsbe protected?

In most countries, an industrialdesign must be registered in orderto be protected under industrialdesign law. As a general rule, tobe registrable, the design must be“new” or “original”. Differentcountries have varying definitionsof such terms, as well as variationsin the registration process itself.Generally, “new” means that noidentical or very similar design isknown to have existed before.Once a design is registered, aregistration certificate is issued.Following that, the term ofprotection is generally five years,with the possibility of furtherperiods of renewal up to, in most cases, 15 years.

Depending on the particularnational law and the kind ofdesign, an industrial design mayalso be protected as a work ofapplied art under copyright law.In some countries, industrial

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design and copyright protectioncan exist concurrently. In othercountries, they are mutuallyexclusive: once the ownerchooses one kind of protection, hecan no longer invoke the other.

Under certain circumstances anindustrial design may also beprotectable under unfaircompetition law, although theconditions of protection and therights and remedies ensured canbe significantly different.

How extensive is industrialdesign protection?

Generally, industrial designprotection is limited to the countryin which protection is granted.Under The Hague AgreementConcerning the InternationalDeposit of Industrial Designs, aWIPO-administered treaty, aprocedure for an internationalregistration is offered. Anapplicant can file a singleinternational deposit either withWIPO or the national office of acountry which is party to thetreaty. The design will then beprotected in as many membercountries of the treaty as theapplicant wishes.

What is ageographicalindication?

What is a geographicalindication?

A geographical indication is a signused on goods that have a specificgeographical origin and possessqualities or a reputation that aredue to that place of origin. Mostcommonly, a geographicalindication consists of the name ofthe place of origin of the goods.Agricultural products typically havequalities that derive from theirplace of production and areinfluenced by specific localgeographical factors, such asclimate and soil. Whether a signfunctions as a geographicalindication is a matter of nationallaw and consumer perception.Geographical indications may beused for a wide variety ofagricultural products, such as, forexample, “Tuscany” for olive oilproduced in a specific area of Italy,or “Roquefort” for cheeseproduced in this region of France.

The use of geographicalindications is not limited toagricultural products. They mayalso highlight specific qualities of aproduct which are due to humanfactors that can be found in theplace of origin of the products,

such as specific manufacturingskills and traditions. That place oforigin may be a village or town, aregion or a country. An examplefor the latter is “Switzerland” or“Swiss”, which is perceived as ageographical indication in manycountries for products that aremade in Switzerland and, inparticular, for watches.

What is an appellation of origin?

An appellation of origin is a specialkind of geographical indication,used on products that have aspecific quality that is exclusively oressentially due to the geographicalenvironment in which the products are produced. The concept of geographical indicationencompasses appellations oforigin. Examples of appellations oforigin which are protected instates that are party to the LisbonAgreement for the Protection ofAppellations of Origin and theirInternational Registration are“Bordeaux” for wine produced inthe Bordeaux region of France,“Habana” for tobacco grown inthe Havana region of Cuba or“Tequila” for spirits produced inparticular areas of Mexico.

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Why do geographicalindications need protection?

Geographical indications areunderstood by consumers todenote the origin and the qualityof products. Many of them haveacquired valuable reputationswhich, if not adequatelyprotected, may be misrepresentedby dishonest commercialoperators. False use ofgeographical indications byunauthorized parties, for example“Darjeeling” for tea that was notgrown in the tea gardens ofDarjeeling, is detrimental toconsumers and legitimateproducers. The former aredeceived and led into believingthat they are buying a genuineproduct with specific qualities andcharacteristics, while they in factget a worthless imitation. Thelatter suffer damage becausevaluable business is taken awayfrom them and the establishedreputation for their products is damaged.

What is the dif ferencebetween a geographicalindication and a trademark?

A trademark is a sign used by anenterprise to distinguish its goodsand services from those of otherenterprises. It gives its owner theright to exclude others from usingthe trademark. A geographicalindication tells consumers that aproduct is produced in a certainplace and has certaincharacteristics that are due to thatplace of production. It may beused by all producers who maketheir products in the placedesignated by a geographicalindication and whose productsshare typical qualities.

How is a geographicalindication protected?

Geographical indications areprotected in accordance withnational laws and under a widerange of concepts, such as lawsagainst unfair competition,consumer protection laws, lawsfor the protection of certificationmarks or special laws for theprotection of geographicalindications or appellations oforigin. In essence, unauthorized

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parties may not use geographicalindications if such use is likely tomislead the public as to the trueorigin of the product. Applicablesanctions range from courtinjunctions preventing theunauthorized use to the paymentof damages and fines or, in seriouscases, imprisonment.

How are geographicalindications protected on the international level?

A number of treatiesadministered by WIPO provide for the protection of geographicalindications, most notably theParis Convention for theProtection of Industrial Propertyof 1883, and the LisbonAgreement for the Protection ofAppellations of Origin and TheirInternational Registration.

What is a “generic”geographical indication?

If the name of a place is used asthe designation of a particularstyle of product, rather than anindication of the place of origin ofthat product, the term no longerfunctions as a geographical

indication. For example, “DijonMustard”, is a style of mustardthat originated many years ago inthe French town of Dijon;however, over time it has cometo denote a certain style ofmustard that is made in manyplaces. Hence, “Dijon mustard”is now a generic indication andrefers to a type of product,rather than a place.

What is WIPO’s role in theprotection of geographicalindications?

WIPO administers a number ofinternational agreements whichdeal partly or entirely with theprotection of geographicalindications (in particular, the ParisConvention for the Protection ofIndustrial Property, and the LisbonAgreement for the Protection ofAppellations of Origin and TheirInternational Registration).Furthermore, the Member Statesof WIPO and other interestedparties explore at WIPO meetingsnew ways of enhancing theinternational protection ofgeographical indications.

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What are copyrightand related rights?

Copyright is the body of lawswhich grants authors, artists andother creators protection for theirliterary and artistic creations,which are generally referred to as“works”. A closely associatedfield of rights related to copyrightis “related rights”, which providesrights similar or identical to thoseof copyright, although sometimesmore limited and of shorterduration. The beneficiaries ofrelated rights are:

performers (such as actorsand musicians) in theirperformances; producers of soundrecordings (for example,cassette recordings andcompact discs) in theirrecordings; andbroadcasting organizations in their radio and televisionprograms.

Works covered by copyrightinclude, but are not limited to:novels, poems, plays, referenceworks, newspapers, computerprograms, databases, films,musical compositions,choreography, paintings, drawings,

What arecopyright andrelated rights?

photographs, sculpture,architecture, advertisements,maps, and technical drawings.

What rights do copyright and related rights provide?

The creators of works protected bycopyright, and their heirs andsuccessors (generally referred to as“rightsholders”), have certainbasic rights under copyright law.They hold the exclusive right touse or authorize others to use thework on agreed terms. Therightsholder(s) of a work canprohibit or authorize:

its reproduction in all forms,including printing and soundrecording;its public performance andcommunication to the public;its broadcasting;its translation into otherlanguages; andits adaptation, such as a novel into a screenplay for a film.

Similar rights of, among others,fixation (recording) andreproduction are granted underrelated rights.

Many types of works, etc.,protected under the laws ofcopyright and related rightsrequire mass distribution,communication, and financialinvestment for their successfuldissemination (for example,publications, sound recordings,and films); hence, creators oftentransfer the rights to their worksto companies best able to developand market the works, in returnfor compensation, in the form ofpayments and/or royalties(compensation based on apercentage of revenues generatedby the work).

The economic rights of copyrighthave a duration, as provided for inthe relevant WIPO treaties,commencing upon the creationand fixation of the work, andlasting for not less than 50 yearsafter the creator’s death. Nationallaws may establish longer terms ofprotection. This term ofprotection enables both creatorsand their heirs and successors tobenefit financially for a reasonableperiod of time. Related rightsenjoy shorter terms, normally 50years after the performance,recording or broadcast took place.Copyright and the protection ofperformers also include moral

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rights, which are the right to claimauthorship of a work, and theright to oppose changes to thework which could harm thecreator’s reputation.

Rights provided for undercopyright and related rights lawscan be enforced by rightsholdersthrough a variety of methods andfora, including by instituting civilactions, pursing administrativeremedies, and through criminalprosecutions. Injunctions, ordersrequiring destruction of infringingitems, inspection orders, etc., areused to enforce rights.

What are the benefits in protecting copyright and related rights?

Copyright and related rightsprotection is an essentialcomponent in fostering humancreativity and innovation. Givingauthors, artists and creatorsincentives in the form ofrecognition and fair economicrewards increases their activitiesand output and often enhancesthe results. Also, by insuring the

existence and enforceability ofrights, enterprises and companiescan more easily invest in thecreation, development, and globaldissemination of works; this, inturn, helps increase access to, andenhances the enjoyment of,culture, knowledge, andentertainment all over the world,as well as stimulating economicand social development.

How have copyright andrelated rights kept up withadvances in technology?

The field of copyright and relatedrights has expanded enormouslyduring the last several decadeswith the spectacular progress oftechnological developments,which have in turn brought newways of disseminating creations bysuch forms of worldwidecommunication as satellitebroadcasting, compact discs andDVDs. Dissemination of works viathe Internet is but the latestdevelopment, which raises newquestions concerning copyrightand related rights in this globalmedium. WIPO is deeply involvedin the on-going internationaldebate to shape new standards

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for copyright protection incyberspace. In that regard, theOrganization administers theWIPO Copyright Treaty (WCT) andthe WIPO Performance andPhonogram Treaty (WPPT), whichare often referred to as the“Internet Treaties”. These InternetTreaties have clarified internationalnorms aimed at preventingunauthorized access to and use ofcreative works on the Internet.

How are copyright andrelated rights regulated?

Copyright and related rightsprotection is obtainedautomatically without any needfor registration or otherformalities. However, manycountries provide for a nationalsystem of optional registration anddeposit of works; these systemsfacilitate, for example, questionsinvolving disputes over ownershipor creation, financing transactions,sales, assignments and transfers of rights.

Many authors and performers donot have the ability or the means

to pursue the legal andadministrative enforcement ofcopyright and related rights,especially given the increasinglyworldwide use of literary, musicaland performance rights. As aresult, the establishment andenhancement of collectivemanagement organizations, or“societies”, is a growing andnecessary trend in many countries.These societies can provide fortheir members the benefits of theorganization’s administrative andlegal expertise and efficiency in,for example, collecting, managing,and disbursing royalties gainedfrom the national andinternational use of a member’swork or performance. Certainrights of producers of soundrecordings and broadcastingorganizations are sometimesmanaged collectively as well.

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What is the World IntellectualProperty Organization?

Established in 1970, the WorldIntellectual Property Organization(WIPO) is an internationalorganization dedicated to helpingto ensure that the rights ofcreators and owners of intellectualproperty are protected worldwideand that inventors and authors arethus recognized and rewarded fortheir ingenuity.

This international protection actsas a spur to human creativity,pushing forward the boundaries ofscience and technology andenriching the world of literatureand the arts. By providing a stableenvironment for the marketing ofintellectual property products, italso oils the wheels ofinternational trade. WIPO worksclosely with its Member States andother constituents to ensure thatthe intellectual property systemremains a supple and adaptabletool for prosperity and well-being,crafted to help realize the fullpotential of intellectual propertyfor present and future generations.

What is the WorldIntellectualPropertyOrganization?

Watch: Courtesy Swatch AG

How does WIPO promote the protection of intellectual property?

As part of the United Nations,WIPO exists as a forum for itsMember States to create andharmonize rules and practices toprotect intellectual property rights.Most industrialized nations haveprotection systems that arecenturies old. Many new anddeveloping countries, however, arenow building up their patent,trademark, and copyright laws andsystems. With the rapidglobalization of trade during thelast decade, WIPO plays a key rolein helping these new systemsevolve through treaty negotiation,legal and technical assistance, andtraining in various forms, includingin the area of enforcement ofintellectual property rights.

WIPO also provides globalregistration systems – for patents,trademarks, and industrial designs– which are under regular reviewby Member States and otherstakeholders to determine howthey can better serve the needs ofusers and potential users.

WIPO works with its MemberStates to demystify intellectualproperty from the grass-roots levelthrough the business sector topolicy makers to ensure that itsbenefits are well known, properlyunderstood, and accessible to all.

How is WIPO funded?

WIPO is largely a self-financedorganization, generating morethan 90 percent of its annualbudget through its widely usedinternational registration services,as well as through itspublications and arbitration and mediation activities. Theremainder comes fromcontributions by Member States.

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For more information contact theWorld Intellectual Property OrganizationAddress:34, chemin des Colombettes P.O. Box 18CH-1211 Geneva 20Switzerland

Telephone:41 22 338 91 11

Fax:41 22 733 54 28

e-mail:wipo.mail@wipo.int

or its New York Coordination Office at:

Address:2, United Nations Plaza Suite 2525New York, N.Y. 10017United States of America

Telephone:1 212 963 6813

Fax:1 212 963 4801

e-mail:wipo@un.org

Visit the WIPO website at:http://www.wipo.int

and order from the WIPO Electronic Bookshop at:http://www.wipo.int/ebookshop

WIPO Publication No. 450(E) ISBN 92-805-1155-4