WIPO DL001 - Primer On Intellectual Property

DL001E
Primer on Intellectual Property

DL001E - Primer on Intellectual Property
Contents
Module 01 – Introduction.................................................................................................................... 2
Module 02 – Copyright ........................................................................................................................ 4
Module 03 – Related Rights.............................................................................................................. 11
Module 04 – Trademarks .................................................................................................................. 15
Module 05 – Geographical Indications ........................................................................................... 24
Module 06 – Industrial Designs ....................................................................................................... 27
Module 07 – Patents ......................................................................................................................... 30
Module 08 – New Plant Varieties .................................................................................................... 34
Module 09 – Unfair Competition ...................................................................................................... 37
Module 10 – Enforcement of Intellectual Property Rights ........................................................... 39
Module 11 – Emerging Issues in Intellectual Property ................................................................. 41
Module 12 – Summary and Conclusions ........................................................................................ 47
Self-Assessment Questions.............................................................................................................. 48
Answers ............................................................................................................................................... 50
© World Intellectual Property Organization, 2020 1 of 51

Module 01 – Introduction
Introduction to the IP Primer (DL 001)
What is Intellectual Property?

The history of the human race is a history of the application of imagination, or innovation and creativity,
to an existing base of knowledge in order to solve problems or express thoughts.
Image Source: Freepik
From early writing in Mesopotamia, the Chinese abacus, the Syrian astrolabe, the ancient observatories
of India, the Gutenberg printing press, the internal combustion engine, penicillin, plant medicines and
cures in Southern Africa, the transistor, semiconductor nanotechnology, recombinant DNA drugs, and
countless other discoveries and innovations, it has been the imagination of the world’s creators that
has enabled humanity to advance to today’s levels of technological progress.

Protection of intellectual property is ensured not only at the national but also at the international level.
The World Intellectual Property Organization (WIPO) administers more than 20 treaties about
intellectual property.
You may find other references at:
http://www.wipo.int/about-wipo/en/what_is_wipo.html
http://www.wipo.int/treaties/en/
What types of intellectual creations can be the subject matter of IP?

It is generally understood that IP includes rights relating to the following:

Module 02 – Copyright
What is copyright?
Copyright aims at providing protection to authors (writers, artists, music composers, etc.) on their creations.
Such creations are usually designated as “works”.
What is covered by copyright?

Works covered by copyright include, but are not limited to, literary works such as novels, poems, and
plays; reference works such as encyclopedias and dictionaries; databases; newspaper articles; films
and TV programs; musical compositions; choreography; artistic works such as paintings, drawings,
photographs and sculptures; architecture; and advertisements, maps and technical drawings. Copyright
also protects computer programs.
Image Source: Unsplash
• Copyright does not however extend to ideas, but only to the expression of thoughts.
• For example, the idea of taking a picture of a sunset is not protected by copyright.
• Therefore, anyone may take such a picture.
• But a particular picture of a sunset taken by a photographer may be protected by copyright.
In such a case, if someone else makes copies of the photograph, and starts selling them without the
consent of the photographer, that person would be violating the photographer’s rights.

Do you need to accomplish any formalities in order to be protected?
Copyright protection is obtained automatically without any need for registration or other formalities. A work
enjoys protection by copyright as soon as it is created.
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.
Image Source: Pexels
What types of rights does copyright provide?

What are the economic rights covered by copyright?

Under economic rights, the creators of a work can use their work as they see fit. They can also authorize
or prohibit the following acts- in relation to a work:
- reproduction in various forms, for example in a printed publication or by recording the work in
cassettes, compact disks or videodiscs, or by storing it in computer memories;
- distribution, for example through sale to the public of copies of the work;

- public performance, for example by performing music during a concert, or a play on stage;
- broadcasting and communication to the public, by radio or T.V, cable or satellite;

- translation into other languages;
- adaptation, for example by converting a novel or a play into a screenplay for a film;
Recent international developments also allow for works to be protected in the context of the Internet.
The WIPO Copyright Treaty (WCT), concluded in 1996, addresses the challenges posed by today’s
digital technology, thus ensuring adequate and effective protection for copyright owners when their
works are disseminated through new technology and communications systems, such as the Internet.

What rights do moral rights cover?

Under moral rights, the author may claim:
How are economic rights exploited?

Many creative works protected by copyright require financial investment and professional skills for their
production and further dissemination and mass distribution. Activities such as book publishing, sound
recording or film producing are usually undertaken by specialized business organizations or
companies, and not directly by the authors. Usually, authors and creators transfer their rights to these
companies by way of contractual agreements, in return for compensation. The compensation may take
different forms, such as lump sum payments, or royalties based on a percentage of revenues generated
by the work.
Many authors do not have the ability or the means to manage their rights themselves. They often resort
to collective management organizations or societies which provide for their members, the benefits of
the organization’s administrative and legal expertise and efficiency in collecting, managing, and
disbursing royalties. These royalties are obtained from the national and international use of a member’s

work on a large scale, by, for example, broadcasting organizations, discotheques, restaurants, libraries,
universities, and schools.
How long does copyright last?
Copyright has a time limit: it usually lasts for the life of the author and 50 years after their death.
To what extent can you use someone else’s work without getting permission?
Why protect copyright?

Module 03 – Related Rights

What are related rights?
Related rights provide protection to the following persons or organizations:
Performers (actors, musicians, singers, dancers, or generally people who perform), in their
performances
Producers of sound recordings (for example, cassette recordings and compact discs) in their
recordings
Broadcasting organizations, in their radio and television programs
Sometimes, these rights are also referred to as neighboring rights.

Is there a distinction between related rights and copyright?

Copyright and related rights protect different people. Copyright protects authors of works.
What are the rights granted to the beneficiaries of related rights?

National laws differ as to the extent of rights which are provided to performers, producers of sound
recordings or broadcasting organizations. Different international treaties address this issue, such as
the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations;, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement), as well as the WIPO Performances and Phonograms Treaty (WPPT).
Performers, in general, enjoy economic rights to prevent fixation, broadcast and communication to the
public of their live performances.
Some national laws, as well as the WPPT, also grant performers the rights of reproduction, distribution,
and rental of their performances fixed in phonograms, along with moral rights against unreasonable
omission of their name, or modifications to their performances included in a sound recording, if such
modifications are likely to harm their reputation.

Producers of sound recordings (also called phonograms) enjoy mainly the right to authorize or prohibit
the reproduction and distribution of their sound recordings by others.
Furthermore, the WPPT ensures that producers of phonograms, as well as performers of works
contained therein, are adequately and effectively protected when the sound recordings are
disseminated through new technology and communications systems, such as the Internet.
Broadcasting organizations are provided the rights to authorize or prohibit re-broadcasting, fixation,
and reproduction of their broadcasts.
Related rights are subject to the same exceptions as for copyright, which would allow anyone to make
free use of the performances, sound recordings or broadcasts for certain specific purposes, such as
quotations, and new reporting.

Why protect related rights?

Module 04 – Trademarks
What is a trademark?
A trademark is a sign that is used to identify certain goods and services as those produced or provided by a
specific person or enterprise. Hence, it helps to distinguish those goods and services from similar ones
provided by another.
“DELL” is a trademark that identifies goods (computers and computer related objects).
“CITY BANK” is a trademark that relates to services (banking and financial services).

What kind of signs can be used as trademarks?

Trademarks may consist of:
- Word (e.g. Kodak) or a combination of words (Coca-Cola);
- Letters and abbreviations (e.g. EMI, MGM, AOL, BMW, IBM);
- Numerals (e.g.7/11);

- Names (e.g. Ford, or Dior) or abbreviations of names (e.g. YSL, for Yves St-Laurent).
- Drawings (like the logo of the Shell oil company, or the Penguin drawing for Penguin books);
- Three-dimensional signs such as the shape and packaging of goods (e.g. the shape of the Coca-Cola
bottle or the packaging for the Toblerone chocolate).

- Combination of colors or single colors (e.g. the orange color used for ORANGE telephone company).
- Non-visible signs, such as music and fragrances.
In all cases, the trademark must be distinctive: it must be capable of distinguishing the goods or
services with which it is used.
A name which is purely descriptive of the nature of the goods and services that are offered may not
constitute a valid trademark.
For example, Apple may serve as a trademark for computers but not for actual apples.

However, a given trademark may not be distinctive from the outset, but may have acquired distinctive
character or “secondary meaning” through long and extensive use.
What types of trademark exist?

In addition to trademarks identifying the commercial source of goods or services, several other
categories of marks exist.
What function does a trademark perform?

Trademarks may perform different functions. In particular they:

How is a trademark protected?

The most common and efficient way of protecting a trademark is to have it registered.
What kind of protection is provided by a trademark?

A trademark owner is given the exclusive rights:
How is a trademark registered?
First, an application for registration of a trademark must be filed with the appropriate national or regional
trademark office. The application must contain a clear reproduction of the sign filed for registration,
including any colors, forms, or three-dimensional features. The application must also contain a list of goods
or services to which the sign would apply.
The sign must fulfill certain conditions in order to be protected as a trademark or another type of mark:
• it must be distinctive, so that consumers can distinguish it as identifying a particular product,

as well as from other trademarks identifying other products;
• it must not be deceptive, that is, it should not be likely to mislead the consumers as to the
nature or quality of the product;

• it should not be contrary to public order or morality;
• it should not be identical or confusingly similar to an existing trademark. This may be

determined through search and examination by the national office, or by the opposition of third
parties who claim similar or identical rights.
How long is a registered trademark protected for?
The period of protection varies (it is usually 10 years), but a trademark can be renewed indefinitely on
payment of the corresponding fees.
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, thereby 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.
• This system is governed by two treaties, the Madrid Agreement concerning the International
Registration of Marks (Madrid Agreement), and the Protocol Relating to the Madrid Agreement
Concerning the International Registration of Marks (Madrid Protocol).
• A person who has a link (through nationality, domicile, or establishment) with a country party
to one or both of these treaties may, on the basis of a registration or application with the
trademark office of that country, obtain an international registration having effect in some, or
all of the countries of the Madrid Union.

What are well-known marks and how are they protected?

Well- known marks are marks that are considered to be well-known by the relevant sector of the public
in the country in which protection is sought. Well-known marks benefit from stronger protection than
marks in general:
they may be protected even if they are not registered in a given territory, and
they may be protected against confusingly similar marks that are used on dissimilar goods or services, whereas
marks are generally protected against confusingly similar marks if used for identical or similar products.
For example, let us consider a trademark such as Mercedes Benz. Normally the company that owns the
trademark would be protected against unauthorized use of the mark by third parties with respect to the
products for which the mark has been registered. To the extent that Mercedes Benz is a well-known
trademark, protection would also be available for unrelated goods. So that if another company decides
to use the trademark in relation to other goods such as, say, men’s underwear, it may be prevented from
doing so.
What is a domain name and how does it relate to trademarks?

Domain names are Internet addresses, and are commonly used to find websites. For example, the
domain name “wipo.int” is used to locate the WIPO website at www.wipo.int.

Why protect trademarks?

Module 05 – Geographical Indications

What is a geographical indication?
A geographical indication is a sign used on goods and stating that a given product originates in a given
geographical area, and possesses qualities or reputation due to that place of origin.
Geographical indications may be used for a variety of products, such as agricultural products like,:
cheese (e.g. “Roquefort” produced in that this region of France ), olive oil (e.g. “Tuscany” for olive oil
produced in a specific region in Italy), or tea (e.g. “Darjeeling” tea , which is grown in India). They are
very often associated with wines and spirits, such as “Scotch Whisky” which originates in Scotland.
The use of geographical indications is not limited to agricultural products or alcoholic beverages. They
may also highlight specific qualities of a product which are due to human factors that can be found in
the place of origin of the products, such as specific manufacturing skills and traditions. That place of
origin may be a village or town, a region or a country.
An example for the latter is “Switzerland” or “Swiss,” which is perceived as a geographical indication in
many countries for products that are made in Switzerland and, in particular, for watches.

What is the difference between a geographical indication and a trademark?
Image Source: Unsplash Image Source: Pexels
How is a geographical indication protected?

A geographical indication is protected in accordance with national laws in various ways, such as:
laws against unfair competition;
consumer protection laws;
laws for the protection of certification marks or collective marks; or
special laws for the protection of geographical indications or appellations of origin.
In essence, unauthorized parties may not use geographical indications if such use is likely to mislead
the public as to the true origin of the product.
Applicable sanctions range from court orders preventing the unauthorized use, to the payment of
damages and fines or, in serious cases, imprisonment.
How are geographical indications protected at the international level?
A number of treaties administered by WIPO provide for the protection of geographical indications, most
notably the Paris Convention for the Protection of Industrial Property of 1883 and the Lisbon Agreement for
the Protection of Appellations of Origin and Their International Registration of 1958.

Why protect geographical indications?

Module 06 – Industrial Designs

What is an industrial design?
An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-
dimensional features, such as the shape of an article, or two-dimensional features, such as patterns, lines or color.
Industrial designs are applied to a wide variety of products of industry and handicrafts such as technical
and medical instruments, watches, jewelry, houseware, electrical appliances, vehicles, architectural
structures, textile designs, leisure goods, and other luxury items.
To be protected under most national laws, an industrial design must appeal to the eye. This means
that an industrial design is primarily of an aesthetic nature, and does not protect any technical features
of the article to which it is applied.

How can industrial designs be protected?
As a general 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.
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, they can no longer invoke
the other.
What kind of protection is provided by industrial designs?

• The owner of a protected industrial design is granted the right to prevent unauthorized copying
or imitation of the design by others. This includes the right of making, offering, importing,
exporting or selling any product in which the design is incorporated or to which it is applied.
• They may also license or authorize others to use the design on mutually agreed terms.
• The owner may also sell the right to the industrial design to someone else.
How long does the protection last?
The term of protection under industrial design laws is generally five years, with the possibility of further
periods of renewal up to, in most cases, 15 years.
Are there territorial restrictions to 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 WIPO. The design will then be protected in as many member countries of the
treaty as the applicant wishes.

Why protect industrial designs?

Module 07 – Patents
What is a patent?
A patent is an exclusive right granted in respect of an invention, which may be a product or a process that provides
a new and inventive way of doing something, or offers a new and inventive technical solution to a problem.
Examples of patents range from electric lighting (patents held by Edison and Swan) and plastic (patents
held by Baekeland), to ballpoint pens (patents held by Biro), microprocessors (patents held by Intel, for
example), telephones (patents held by Bell), and CDs (patents held by Russell).

What kinds of inventions are protected?
An invention must, in general, fulfill the following conditions to be protected by a patent:
it must be new or novel, that is, it must show some new characteristic which is not known in the body of
existing knowledge (called “prior art”) in its technical field.
it must be non-obvious or involve an inventive step, that is, it could not be deduced by a person with average
knowledge in the technical field.
it must be useful or capable of industrial application;
finally, the invention must be part of the so-called “patentable subject matter” under the applicable law. In
many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural
substances, commercial methods, or methods for medical treatment (as opposed to medical products)
are not considered to be patentable subject matter.
How to protect your inventions?
How is a patent granted?

The first step in securing a patent is the filing of a patent application.
• The patent application generally contains the title of the invention and a brief statement of the
technical field in which the invention lies, as well as the background and a description of the
invention in a manner sufficiently clear for it to be evaluated and carried out by a person having
ordinary skill in the arts.
• Such descriptions are usually accompanied by visual materials such as drawings, plans, or
diagrams to better describe the invention.
• The application also contains various “claims”, that is, information which determines the extent
of protection granted by the patent.
The 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.

Image Source: USPTO Database
What rights does a patent provide?
The owner of a patent may, in principle, exclude others in the territory covered by the patent from making,
using, offering for sale, importing, or selling the invention without their consent.
Furthermore, the patent owner may give permission to, or license, other parties to use the invention on
mutually agreed terms.
The owner may also sell the right to the invention to someone else, who will then become the new owner of
the patent.

How extensive is patent protection?
Why protect inventions by patents?

Module 08 – New Plant Varieties

How can new plants be protected?
The International Convention for the Protection of New Varieties of Plants (UPOV Convention) provides
for the protection of plant varieties by means of a “Plant Breeder’s Right”, which is a sui generis form
of intellectual property rights, specifically tailored for that purpose.
Members of the World Trade Organization (WTO) are committed by the TRIPS Agreement to provide
protection to plant varieties either by patents or by an effective sui generis system (that is, a special
system for plant varieties) or by a combination of both (Article 27.3(b)).
When can plant varieties be protected?

Under the UPOV Convention, in order for the plant variety to be protected, it must be:

What protection does the breeder get?

Under the 1991 Act of the UPOV Convention, the following acts in respect to the propagating material
(the seed or plant, or part of plant that is used for the reproduction or multiplication of the variety)
require prior authorization from the breeder:
- production or reproduction; - exporting;
- conditioning for the purpose of propagation; - importing;
- offering for sale; - stocking for any of the above purposes.
- selling or other marketing;
If breeders do not have the chance to exercise their right on the propagating material, and the variety is
propagated without authorization, breeders can exercise their right on the harvested material.
How does the system allow the breeder to recoup the investment?
When giving the authorization for the above-mentioned acts to those who wish to exploit the variety, the
breeder may, as a condition, require the payment of a royalty. Thus, for farmers who buy seed, this royalty
would be included in the price of the seed.
To what extent can you use a protected plant variety without the need to ask for
authorization?
It is important to note that authorization from the breeder is NOT required for:
- acts done for non-commercial purposes;
- acts done for experimental purposes;
- acts done for the purpose of breeding and exploiting other varieties.
Subject to reasonable limitations and to the safeguarding of the legitimate interest of the breeders, the
UPOV Convention allows UPOV members to provide for farmers to use the product of their harvest for
propagating purposes (e.g. to save part of the grain harvested by the farmer to be used as seed for the
following season on their own farm).

How long do the breeder’s rights last?

The minimum duration described in the 1991 Act of the UPOV Convention is:
25 years for trees and vines
20 years for other plants.
How extensive is plant variety protection?

• Usually, the protection is granted on a national level, in each of the States where the breeder
seeks protection.
• However, the UPOV Convention allows protection on a supranational basis, which can greatly
reduce the cost and effort needed to obtain protection in several countries.
• For example in the European Union, the Community Plant Variety Office grants a plant breeder’s
right which is valid in the territory of all its member States.
Why protect new varieties of plants?

Module 09 – Unfair Competition

What is unfair competition?
Unfair competition is generally understood as any act of competition that is contrary to honest practices in
industrial or commercial matters.
A dishonest practice is not something that can be defined with precision. The standard of fairness or
honesty may change from country to country, as well as evolve with time. It is, therefore, difficult to
attempt to encompass all existing acts of unfair competition in one definition. On the other hand, the
Paris Convention for the Protection of Industrial Property specifies that the following acts and practices
are incompatible with the notion of fairness in competition:
- acts which may create confusion by any means with the establishment, the goods or the industrial or
commercial activities of a competitor
(e.g. using a trademark identical or similar to another with respect to goods of the same category);
- acts that constitute false allegations of such nature as to discredit or disparage the establishment, the
goods, or the industrial or commercial activities, of a competitor
(e.g. an enterprise attacking a competitor through statements that are false and untrue with relation
to the latter’s goods or services);
- indications or allegations which may mislead the public as to the nature, the manufacturing process, the
characteristics, the suitability for their purpose, or the quantity of the goods
(e.g. a company publishing false and untrue statements concerning the quality or safety of its own
products in connection with promotion or sales advertising);
Unfair competition cannot be confined only to the 3 categories described above.
There is broad agreement that this concept should also apply to the following:
- acts consisting in the disclosure or use by others of secret, or confidential information without proper
consent of the rightful holder of the information, in a manner contrary to honest commercial practices
(e.g. acts tending to appropriate another’s secret information, such as, a method of manufacturing a
product, through industrial or commercial espionage);
- acts or practices that, in the course of industrial or commercial activities, damage the goodwill or reputation
of another’s enterprise, regardless of the fact whether such acts cause confusion or not
(e.g. the fact of using a well-known trademark, say Cadillac, by someone other than its owner, for
entirely different products, such as watches. This may result in the dilution of the well-known trademark,
that is, the lessening of its distinctive character or of its advertising value. Furthermore, in this case, the
user obtains an unfair advantage over their competitors, who do not own the well-known trademark,
which is likely to favor the sale of his own product.)

What is the relationship between unfair competition and intellectual property laws?
In many countries, unfair competition laws supplement intellectual property laws.
To illustrate with an example, let us consider the situation where a trademark (A) has been used in
association with certain goods. If a third party uses the same trademark or another similar mark (B)
with the same category of goods, in a way that it is likely to cause confusion with (A), then the user
of trademark (A) would justifiably have reason to complain and a legal basis to sue in order to stop
the harmful activities. Two situations may then arise:
If the owner of trademark (A) has registered their trade mark beforehand, they will be entitled to
bring action before the courts on the basis of trademark violation or infringement;
If the owner of trademark (A) has not yet registered the trademark, they may bring action on the
basis of unfair competition.
However, the prerequisites to proceed with one or the other lawsuits are not identical.
It may be easier to succeed with an action based on infringement of an intellectual property law, than
with an action based on unfair competition.
It is, therefore, advisable to register your rights (on trademarks, industrial designs, geographical
indications, etc.) whenever national laws or international treaties allow for such a possibility, instead of
relying solely on unfair competition, as a means to put an end to a dishonest behavior of a competitor
that may harm your business.

Module 10 – Enforcement of Intellectual Property Rights

Infringement of Intellectual Property Rights
• A publisher may own copyright in a book, which has been reproduced and sold at a cut price,
without their consent.
• A sound producer, who has invested large amounts of money, in terms of talent and technical
skill, in producing a record, sees that copies of it are sold on the market, at cheap prices, without
their authorization, hence jeopardising their investment.
• Someone else’s trade mark may have been used by a company on similar or identical goods of
lesser quality, harming thus the reputation of the legitimate owner, and inflicting on them
serious financial loss, let alone exposing customer’s health to danger.
• Somebody may be using the geographical denomination of “Roquefort” on cheese

manufactured elsewhere than in the region of Roquefort in France, thus deceiving the
consumers as well as taking away business from legitimate producers.
In all such cases intellectual property rights (that is, copyrights, related rights, trademarks, and
geographical indications) have been infringed. It is important that in such cases, enforcement
mechanisms be called into play to protect not only the legitimate interests of the rights of the owners,
but also of the public.

Enforcement Measures
Enforcement is an essential component of intellectual property laws. It may seem trite, but nevertheless
true, to state that, laws that are not enforced or implemented are like tigers without teeth. This is why
the TRIPS Agreement, as well as national laws, provide for a variety of methods designed to ensure that
rights are enforced in an efficient manner. These methods include:
Provisional measures, such as search of premises and seizure of suspected infringing goods,,
as well as equipment used to manufacture them;
Civil remedies, such as monetary compensation and destruction of infringing goods;
Court orders, to stop the violation that has taken place, or prevent it from happening;
Criminal sanctions, such as imposition of fines and imprisonment; and

Criminal sanctions, such as imposition of fines and imprisonment; and
Border measures, designated to stop the release into circulation of suspected imported
infringing goods.
Should you suspect that your intellectual property rights have been violated, it would be advisable to
seek professional help from a lawyer or specialized institutions in your country.

Module 11 – Emerging Issues in Intellectual Property

Intellectual property plays an important role in an increasingly broad range of areas, ranging from the
Internet to health care, to nearly all aspects of science and technology, literature, and the arts.
The following two topics, Biotechnology and Traditional Knowledge, are now being discussed at length
at the international arena. They are briefly described in the following paragraphs.
Image Source: Getty Images

What is Biotechnology?
Biotechnology is a field of technology of growing importance in which inventions may have a significant
effect on our future, particularly in medicine, food, agriculture, energy, and protection of the environment.
The science of biotechnology concerns living organisms, such as plants, animals, seeds, and
microorganisms, as well as biological material, such as, enzymes, proteins, and plasmids (which are
used in “genetic engineering”).
In recent times, scientists have developed processes to modify the genetic composition of living
organisms (called, genetic engineering). For example, the modified microorganisms created by
Chakrabarty (an inventor in the United States of America), were able to break down components of oil
pollution in oceans and rivers.
The patent on these microorganisms was the subject of a landmark decision by the United States
Supreme Court, in which modified microorganisms were recognized as patentable subject matter. The
Court noted that the laws of nature, physical phenomena, and abstract ideas were not patentable.
The claimed invention, however, was not directed to an existing natural phenomenon but to new
bacteria with markedly different characteristics from any found in nature. The invention therefore
resulted from the inventor’s ingenuity and effort, and could be the subject of a patent.
The list of industries using biotechnology has expanded to include health care, agriculture, food
processing, bio-remediation, forestry, enzymes, chemicals, cosmetics, energy, paper-making,
electronics, textiles, and mining. This expansion of applications has resulted from innovations that
have led to significant economic activity and development.

Why protect biotechnological inventions?

As in other fields of technology, there is a need for legal protection in respect of biotechnological
inventions. Such inventions are creations of the human mind just as much as other inventions, and are
generally the result of substantial research, inventive effort, and investment in sophisticated
laboratories.
Typically, enterprises engaged in research, only make investments if legal protection is available for the
results of their research. As with other inventions and industries, the need for investment in research
and development efforts creates an obvious need for the protection of biotechnological inventions.
This need is not only in the interest of inventors and their employers, but also in the public interest of
promoting technological progress.
Modern, flexible intellectual property systems and policies have contributed to fostering investment
needed to establish biotechnology industries that create tangible products. Flexible intellectual
property policies can play a role in favoring stable legal environments conducive to public/private
partnerships, investment, and other economic activity needed to spread biotechnological innovations
to more countries.
The patenting of biotechnology innovations has been accompanied by controversy as has the use of
some of these new innovations. Policy makers of all countries, however, have been careful to avoid
extending patent rights to things as they exist in nature or to natural phenomena.
A new plant species discovered in the wild, for instance, can-not be patented and neither can laws of
nature. In each country, the laws on patentability of biotechnological inventions need to be consulted
to learn the availability of patent protection and its scope.
When considering these issues, one also needs to recognize that legal regimes other than patent
systems, are typically relied upon to address other public interests, such as the environmental or
medical safety of products, efficacy of products, and unfair competition that may occur in the assertion
of patent rights.
The confluence of this new technology with legal and regulatory systems makes biotechnology an
evolving and dynamic component of intellectual property law.

Image Source: Getty Images
Why has traditional knowledge been recently discussed in connection with IP?
Traditional knowledge – used here broadly to refer to tradition-based innovations and creations,
resulting from intellectual activity in the industrial, scientific, literary or artistic fields – had been largely
over-looked in the IP community until quite recently.
It is now increasingly recognized that the economic value of traditional knowledge assets could be
further enhanced by the use of IP.
There are also concerns that the IP system has not adequately recognized the contribution of traditional
knowledge systems in human development, and the interests of the holders of traditional knowledge.
Holders of traditional knowledge are exploring ways of protecting their interests within the IP system,
safeguarding against misappropriation of their knowledge, cultural works and distinctive signs and
symbols.

Many also seek to build their traditional knowledge and cultural expressions into sustainable economic
and social development, utilizing various intellectual property approaches including patent, trademark,
and copyright laws, and so called ‘sui generis’ or tailor made laws for protecting traditional knowledge,
traditional cultural expressions, or folklore, where these have been established.
Often, the enhancement of an old technology generates valuable new inventions, or the adaptation of
an old artistic tradition results in new creative works.
These questions are the subject of focused discussion in the WIPO Intergovernmental Committee (IGC)
on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore, which is making
substantial progress in addressing both policy and practical linkages between the IP system, and the
concerns and needs of holders of traditional knowledge and custodians of traditional cultures.
Why and how does the issue of genetic resources relate to IP?
Genetic resources (that is, genetic material of actual or potential value including elements of biological
diversity in their natural setting, and modern or traditional cultivars and breeds used in agriculture, and
special genetic stocks) can provide an important input for research and the development of new
products, in an increasingly broad range of technological and industrial sectors. The terms and
conditions of access to genetic resources, the exercise of prior informed consent by the providers of
genetic resources, and the resulting arrangements made for the sharing of benefits from their use and
development, are critical issues.
Existing international law and a number of regional, national and sub-national laws and regulations set
the framework for exercising prior informed consent for access to genetic resources, and determining
the terms and conditions of access, in particular ensuring that this material is used sustainably and the
benefits of its use are shared equitably.
Key elements of international law include the Convention on Biological Diversity (CBD) and the
International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) of the Food and
Agricultural Organization (FAO). Within access and benefit-sharing agreements and legal regimes
permitting access to genetic resources, the specific arrangements made for intellectual property
management can be crucial in ensuring that they operate to create benefits from access to genetic

resources, and in particular to ensure that those benefits are shared equitably and the interests and
concerns of the resource providers are fully respected.

Module 12 – Summary and Conclusions

Self-Assessment Questions
Self-Assessment Question 1
For each of the following examples state the area of IP law that would be most appropriate for their
protection:
1) a company wishes to protect a product comprising a new chemical formula

(Tetrafluorethylene,) which when used on, or applied to kitchen utensils, has the
characteristics of preventing food in general, and eggs in particular from sticking to the pan.
The company wants to ensure that it has sole use of the formula;
2) The same company wishes to market the frying pans that are coated with Tetrafluorethylene,
under a commercial name that may attract its potential customers (as Tetrafluorethylene is
not an easy name to be remembered, let alone pronounced by ordinary consumers). “ Tefal ”,
is the name chosen and used to identify the frying pans manufactured with the magic
formula. The company wants to make sure that it has sole use of the name in relation to
kitchen utensils and frying pans coated with Tetrafluorethylene;
3) The same company wishes to enhance the sale of its frying pans, not only by using the Tetra
formula, but also by giving them a more appealing, aesthetic and new aerodynamic shape. It
also wants to make sure that it has sole use of the new appearance, or “ look ”of its frying
pans;
4) The same company wishes to aggressively advertise its unique and special frying pans
(coated with the magic formula, sold under the name of “Tefal”, and appearing under nice
contours), on both T.V, by means of short film sketches of 20 seconds, and on radio, by
means of short songs. It wants to make sure that nobody will use the music or words of the
song, nor the short films made for TV.;
A person has composed the music and lyrics of a song. In order to be protected from acts of piracy,
should they register their rights on the song?
Which of the following categories of persons are protected by related rights?
1) music composers
2) singers of songs
3) producers of sound recordings
4) authors of plays
5) film producers
6) actors ( of film and plays)
7) broadcasting companies
8) ballet dancers

You are the owner of a company that produces and sells fruit juices in bottles and cans. You intend to
choose the designation “Frutamine” to identify your products
1) Do you think this word could be used as a trademark?

2) If yes, what should you do in order to protect it?
Please indicate, for each of the following designations, the suitable system of protection available:
1) “DARJEELING” (tea harvested in India)

2) “SONY”
3) “CHAMPAGNE”
4) “ROLEX”
5) “IBM”
6) “TEQUILA” (alcoholic beverage produced in Mexico)
7) “SWISS AIRLINES”
A company is putting on the market telephones with “post modern, revolutionary” designs. It hopes
that in a highly competitive market, the ornamental features of its telephones, different from all what
has existed before, will help attract new customers and increase its business.
Could such design be protected, and how?
Could Einstein obtain a patent on his famous mathematical equation: E = mc 2?
Company (A) has developed a new formula that enhances the taste of a beverage it sells to the
public. The composition of the mixture is kept secret. The beverage is a huge success. A competitor
(B) is interested in getting hold of the formula. In order to obtain it, (B) pays a hefty amount of money
to one of Company (A)’s employees, who is well aware about the confidential nature of the
information that has been entrusted to them by the Company that employs them. Company A
discovers the fact. Can it successfully complain against B’s behavior and if yes on what ground?

Answers
No Answer
1) Patent
2) Trademark
SAQ1
3) Industrial design
4) Copyright
No. Works in general, such as songs, are protected under copyright laws of most countries by the
SAQ2 mere fact of their creation. Protection does not depend on the fulfillment of formalities such as
registration.
Related Rights would apply to:

2) singers of songs
3) producers of sound recordings
6) actors (of film and plays)
SAQ3 7) broadcasting companies
8) ballet dancers
These all are performers.
However, music composers, authors of plays and film producers would be protected by copyright.
1) There is a good likelihood that “Frutamine” could be used as a trademark. It consists of a

combination of words that suggest that fruits are a source of vitamins. It is not clearly
descriptive of the product (fruit juice), nor is it deceptive (fruit juice is, in fact, rich in vitamin)
2) It is important to register the trade mark at your national trademark office, in order to obtain
protection in this country.
SAQ4
Furthermore, if you intend to export your product, and ensure that protection is granted abroad, you
should also register your trademark in each of the countries where the goods will be distributed.
Remember however that, under the Madrid Agreement concerning the International Registration of
Trademarks, you may obtain an international registration in a number of countries that are members
of the such Treaty, provided the country of which you are a national, or in which you are domiciled or
have an establishment, is also a member of the Madrid Agreement.
Trademark Law would apply to the following designations: 2) SONY, 5) IBM, 4) ROLEX, and 7) SWISS
AIRLINES.
Geographical Indications would cover: 1) DARJEELING, 3) CHAMPAGNE, 6) TEQUILA. In these
examples, the name indicates that a given product – tea, or alcoholic beverage - originates in a given
geographical area and possesses qualities or reputation due to that place of origin.
SAQ5
However, please be aware of the fact that in certain countries, the protection for geographical
indications may be available under either, special laws to that effect (that is, laws that protect
geographical indications as such), or other branches of law (such as laws for the protection against
unfair competition, or even trademark law, as geographical indications may be protected by a
certification mark or a collective mark).
The design, as described, appears to be new and original, and as such it should be protected.
Following the laws that exist in your country, such protection may differ.
This design could be registered under the law of Industrial Design.
It may also be that in your country, such design could be protected under Copyright law (which does
not require any registration as a condition for protection), or under both Industrial Design and
SAQ6
Copyright laws.
Should you contemplate selling the telephones in foreign countries, you may be able to obtain an
industrial design registration in a number of countries, that are party to the Hague Agreement related
to the International Deposit of Industrial Designs, provided that you are a national of a State, or that
your company is established in a State that is party to the Hague Agreement.
SAQ7 No. Scientific theories or mathematical formulas cannot constitute subject matter of patents.

The secret formula developed by Company (A) may be considered as a trade secret. In the
circumstances (B)’s conduct may be described, under the terms of the Paris Convention for the
Protection of Industrial Property, as an act that is contrary to honest practices in industrial or
commercial matters, and hence an act of unfair competition.
SAQ8
It is generally recognized that acts tending to appropriate someone else's secret or confidential
information, (in this case the secret formula of the mixture developed by Company (A)), without proper
consent of the rightful holder of the information, are contrary to honest commercial practices and
should hence be considered as acts of unfair competition.

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DL001E

Primer on Intellectual Property

© World Intellectual Property Organization, 2020 1 of 51

What is Intellectual Property?

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You may find other references at:

What types of intellectual creations can be the subject matter of IP?

© World Intellectual Property Organization, 2020 3 of 51

What is covered by copyright?

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• Therefore, anyone may take such a picture.

• But a particular picture of a sunset taken by a photographer may be protected by copyright.

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© World Intellectual Property Organization, 2020 4 of 51

Do you need to accomplish any formalities in order to be protected?

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What types of rights does copyright provide?

© World Intellectual Property Organization, 2020 5 of 51

What are the economic rights covered by copyright?

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- broadcasting and communication to the public, by radio or T.V, cable or satellite;

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- translation into other languages;

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What rights do moral rights cover?

How are economic rights exploited?

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How long does copyright last?

Why protect copyright?

© World Intellectual Property Organization, 2020 10 of 51

Module 03 – Related Rights

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Broadcasting organizations, in their radio and television programs

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Sometimes, these rights are also referred to as neighboring rights.

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Is there a distinction between related rights and copyright?

What are the rights granted to the beneficiaries of related rights?

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Why protect related rights?

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© World Intellectual Property Organization, 2020 15 of 51

What kind of signs can be used as trademarks?

- Word (e.g. Kodak) or a combination of words (Coca-Cola);