Intellectual property is an umbrella of legal concepts that cover terms such as trademarks, trade secrets, copyrights and patents. This article will give a brief description of what each type of intellectual property term consists of.
Trademarks
When starting a business the protection of intellectual property is often overlooked. However, IP protection is a crucial part in the startup of a brand. A trademark is essentially a brand name. A person or company can file a trademark application to protect any symbol, phrase, word, device, colour or anything that distinguishes the brand's goods or services. Trademarks are an important asset because:
The hold exclusive ownership
It adds value to your brand
It create brand identity
Trademark protection is governed by the Trademarks Act. Currently, a registered trademark is valid for ten (10) years from the date of registration and may continue to be renewed for ten-year terms on an as needed basis. When initially filing a trademark application, it is required that the person filing for trademark protection provides proof of use of the trademark. That being, the person is using the trademark to distinguish his or her brand from others. However, it is not necessary to file proof of use to renew your trademark registration.
Trade Secrets
A trade secret is any form of valuable proprietary information that derives its value from secrecy. It is the idea or information that is not known by the public or its comparative industries. Its exclusivity and secrecy is held by the business and the business owner. Unlike trademarks, there is no official registration of a trade secret in Canada. The only way to protect a trade secret is to well, keep it secret. You can learn more about how to protect trade secrets on our previous article Trade Secrets and Confidentiality here.
Copyright
A copyright can protect only the expression of an idea, but not the actual idea itself. For example, music composition or artistic design such as a painting. It maintains original artistic work or ideas (i.e. musical or literary works) if it is in compliance with the Copyrights Act. Similar to trade secrets, there is no requirement to register a copyright. It will automatically exist upon the creation of a project that is considered to be "copyrightable". However, it is always recommended to mark any copyright work with, for example, usage of a copyright symbol “©” and also the creator's name and year of publication.
The scope of protection under the Copyright Act allows for additional activities that only the copyright owner has a right to do. This may include:
Produce, reproduce, perform, or publish any translation of the work
Convert a dramatic work into a novel or other non-dramatic work
Neighboring rights (i.e. if the performance is not fixed, to communicate it to the public by telecommunication, or to fix it in any material form. The owner also has the sole right to authorize these acts)
Unlike a trademark, you do not need to renew your copyright protection. The duration of a copyright will solely depend on the copyright itself. A copyright will exist for fifty (50) years after the last time the copyright was used. For example, if the copyright was being used by a recording studio, the copyright will exist for 50 years after the year in which the recording was made.
Patents
A patent is basically a type of invention. To secure protection for a patent, you must comply with provisions in the Patent Act relating to patentability:
An invention must be patentable subject matter and have utility
An invention must be novel and not previously disclosed anywhere in the world
An invention must have inventive ingenuity and not be obvious to the person skilled in the relevant art
There is a 1 year grace period provided for public disclosures of the invention made by the applicant or persons who have obtained knowledge of the invention directly or indirectly from the applicant
Similar to trademarks, you do need to register a patent. The Canadian Intellectual Property Office (CIPO) holds responsibility of reviewing and approving or denying patent applications. However, it is important to note that in Canada patents hold a first-to-file rule. This means that if someone else has the same or similar invention as you and files their patent application first, and it gets approved; they hold ownership of the patent.
That person then has the excusive right to:
Make, use or sell the invention claimed in the patent
Grant an exclusive or non-exclusive license to make, use or sell the invention claimed in the patent
Import the invention claimed in the patent and, in the case of a patented process, products made in accordance with the patented process
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