Protecting intellectual property is imperative to maintaining the competitive edge of a revolutionary or innovative technology. This protection ensures the production and sale of a key product, limits competition, creates alternative sources of revenue through licensing, provides protection in the event of fraudulent use, and adds tangible value to the organization. That said, there are several types of intellectual property:
1) Trade secrets
Trade secrets generate their value by the simple principle that they are not known and that reasonable efforts are made to keep them secret. For example, ideas, methods, designs, policies and financial data are all trade secrets. As trade secrets have a highly intangible value, their protection must be ensured through obligations of confidentiality and discretion on the part of recipients. In these circumstances, a confidentiality undertaking (NDA) is the preferred option.
2) The patent
A patent is an exclusive right that prevents a third party from producing, using or offering a service or product that is patented. To be patentable, the invention must be new and useful, without being obvious or obvious to anyone in the same field. The patent must remain confidential until it is applied for. It must also be filed with each applicable patent office in order to have exclusivity over all the markets to be exploited. When the patent expires, exclusivity is withdrawn and third parties can begin marketing the same product.
3) The trademark
A trademark is a distinctive element that allows a product or service to be recognized from others on the market. It can be a distinctive word, symbol, image or color. A trademark does not have to be registered to be valid. That said, as a precautionary measure, registration is strongly recommended.
4) Copyright
Copyright is granted to authors of literary, musical or artistic works. The Copyright Act (Canada) provides that computer programs are copyrighted as literary works. In addition, the courts have recognized that source codes constitute a series of written instructions that can be assimilated to copyright. Copyright does not have to be registered in order to be protected. That said, it does provide the owner with the assurance that a third party cannot claim to have been unaware of the existence of the copyright. The addition of the common © symbol or the term “copyright” is not required under Canadian law, but is recommended given its worldwide recognition. It is therefore essential to identify the type of intellectual property applicable to your business in order to take the concrete protective measures required to maintain your company’s distinctive character in relation to the rest of the market.
By Audrey Robitaille