What different types of intellectual property rights exist in your jurisdiction to protect: (a) Inventions; (b) Brands; (c) Other creations, technology and proprietary interests

Intellectual Property (3rd edition)

Malaysia Small Flag Malaysia

Intellectual property rights exist in our jurisdiction to protect:

(a) Inventions: patents, certificate for a utility innovation and confidential information

(b) Brands: trade marks, passing off, geographical indication

(c) Other creations, technology and proprietary interests: copyright (which includes literary works; musical works; artistic works such as graphic work, photograph, sculpture or collage, works of architecture and works of artistic craftsmanship; films; sound recordings; broadcasts; published editions of works; derivative works), plant varieties and industrial design.

Norway Small Flag Norway

1.1.1 Inventions (e.g. patents, supplementary protection certificates, rights in confidential information and/or know-how);

There are two different types of intellectual property rights available for the protection of inventions: patents and trade secrets. Patents protecting medicinal products and plant protection products may enjoy an additional period of protection in the form of supplementary protection certificates (SPCs).

1.1.2 Brands (e.g. trade marks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees);

Brands are subject to protection as trademarks. Registered business names and personal names used for goods and services enjoy protection against others’ use within the same geographical area. Geographical indications for wine and liquor are protected according to the Marketing Act.

1.1.3 Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in confidential information and/or know-how).

Copyright exists for the protection of works/intellectual creations, including computer programmes. Designs are subject to protection as registered designs. Database rights provide protection of databases. Third parties’ use of technical aids, products, hallmarks, catalogues, means for advertising etc. are protected according to the Marketing Act. In addition, the Marketing Act contains a prohibition for actions in conflict with good business practice.

Singapore Small Flag Singapore

The main categories of intellectual property rights in Singapore are:

  1. Patent rights – to protect inventions that are novel, inventive and industrially applicable;
  2. Rights in confidential information;
  3. Industrial design rights – to protect features of shape, configuration, colours, pattern or ornament applied to an article or non-physical product;
  4. Trade mark rights – to protect indications of trade origin, both registered and unregistered, including collective and certification marks and including through the tort of passing off;
  5. Rights in geographical indications (“GIs”);
  6. Copyright – which could subsist in literary, dramatic, musical and artistic works, and ancillary works such as sound recordings, television broadcasts and cinematograph films;
  7. Rights in layout designs of integrated circuits;
  8. Plant varieties protection.

Mexico Small Flag Mexico

(a) Inventions: patents, utility models, industrial designs, integrated circuits and trade secrets.

(b) Brands: trademarks (including non-traditional: scent, sound and holograms), trade names, slogans, trade dress, geographical indications and appellations of origin.

(c) Other creations, technology and proprietary interests: copyright, related rights, reservations of rights, plant varieties.

China Small Flag China

Patents, know-how, trademarks, rights to prevent unfair competition, collective marks, certification marks, geographical indications, designations of origin, copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in confidential information and know-how, trade names, domain names.

Ecuador Small Flag Ecuador

As a precedent, it is important to point out that Ecuador, as a member of the World Trade Organization, is a member of the Agreement on Aspects of Intellectual Property Rights, TRIPS, to the WIPO Copyright Treaty. It is also a member of the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, the Rome Convention on the Protection of Performers, Producers of Phonograms and the Organizations of Broadcasting, the WIPO Treaty on the Interpretation or Execution of Phonograms and the International Union for the Protection of New Varieties of Plants (UPOV).

Based on the rights enshrined in the aforementioned agreements, Ecuador, as a member country of the Andean Community, acceded to the Common Industrial Property Regime, Common Regime on Copyright and Related Rights, Common Regime for the Protection of the Rights of Consumers of the Vegetable Varieties.

At the national level, Intellectual Property rights are governed by the Constitution and the Organic Code of the Social Economy of Knowledge and Innovation based on the aforementioned Agreements with certain limitations.

With the detailed background, the analysis of the protection of intellectual rights specified below is based on national and Andean legislation.

(a) Inventions (e.g. patents, supplementary protection certificates, rights in trade secrets, confidential information and/or know-how);

The Ecuadorian and Andean rules protect as inventions all the product and procedure patents.

On the other hand, the legislation protects the rights on trade secrets and confidential information, which is not necessarily considered an invention.

For a better understanding, a concept of each right is detailed below:

Invention patent: It is a mean for protecting the exclusive rights on a product or a process with novelty character, industrial application and inventive level granted in favour of the inventor, so that him can exploit it commercially in a period.

Business secrets: Business secrets: It is undisclosed information that a natural or legal person legitimately possesses, it can be used in any productive, industrial or commercial activity, and liable of being transmitted to a third party, to the extent that said information is secret, has commercial value and that has been subject to reasonable measures to keep it secret.

(b) Brands (e.g. trade marks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees);

The national and Andean legislation protect the trademark rights, such as trademarks, commercial slogans, commercial names, certification marks, collective marks and country brand.

This also protects other ways to identify a product that is not necessarily a brand, distinctive appearances, geographical indications, specifically denominations of origin and traditional specialties guaranteed.

On the other hand, the legislation protects the traditional knowledge as ancestral and local knowledge of traditional cultural expressions.

Finally, all rights are protected against any act of unfair competition.

(c) Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in trade secrets, confidential information and/or know-how).

National and Andean legislation protects copyright, plant varieties, industrial designs, layout designs of semiconductor circuits, topographies, utility models and traditional knowledge.

Confidential information and / or know-how is protected in all cases.

South Africa Small Flag South Africa

(a) Inventions;

There is statutory protection for Patents and Registered Designs.

Registered Designs can be applied for in respect of Aesthetic Designs or Functional Designs. An Aesthetic Design means any design applied to any article, whether for the pattern or the shape or the configuration or the ornamentation thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof, whereas a Functional Design means any design applied to any article, whether for the pattern or the shape or the configuration thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which are necessitated by the function which the article to which the design is applied, is to perform, and includes an integrated circuit topography, a mask work and a series of mask works. There is common law protection only for trade secrets, confidential information, and know how.

(b) Brands;

Statutory protection for trade marks and copyright in art works related to trade marks.

Common law provides also for trade marks, and for a cause of action in passing off, rights to prevent unfair competition.

Trade marks include association marks, certification marks, hallmarks.

There are legal provisions for designations of origin and geographical indications under the Agricultural Products Standards Act.

(c) Other creations, technology and proprietary interests

Copyright - The Copyright Act defines nine classes of work that are eligible for copyright:

literary works - including novels, poems, plays, film scripts, textbooks, articles, encyclopaedias, reports, speeches, etc.

musical works - excluding words sung with the music

artistic works - including paintings, sculptures, drawings, photographs, architectural works, works of craftsmanship, etc.

cinematograph films - in any medium, including film, tape or digital data

sound recordings - in any medium, but excluding film soundtracks

broadcasts - signals transmitted by radio waves and intended for public reception

programme-carrying signals - signals representing audio and/or video and transmitted via satellite

published editions - particular typographical arrangements of literary or musical works

computer programs - instructions, in any medium, that direct the operation of a computer.

Registered Designs already mentioned above include IC and semiconductor topography.

Plant breeders rights are also possible and may require a simultaneous variety listing application.

Japan Small Flag Japan

(a) Patents protect inventions, which are highly advanced creations of technical ideas utilizing the laws of nature. Patent term extension is available for a patent when the patented invention cannot be practiced due to regulations on drugs or pesticides.

Utility models protect devices, which are creations of technical ideas utilizing the laws of nature.

With respect to the protection of trade secrets, certain activities, such as wrongful acquisition, use or disclosure of trade secrets, are regarded as unfair competition.

(b) Registration of trademarks protects characters, figures, signs, three-dimensional shapes, colors or any combination thereof and sounds that can be recognized by human perception (including moving marks, hologram marks and position marks) and that are used in connection with goods or services.

In addition to the matter explained above, (i) creating confusion with a well-known indication of goods or services, (ii) misappropriation of an indication of famous goods or services, (iii) imitation of the configuration of a third party’s product, (iv) wrongful acquisition or usage of data for limited provision, (v) wrongful acquisition or usage of a domain name, (vi) misleading representation regarding the place of origin, quality, etc. of a product, (vii) false representation injuring the reputation of a competitor’s business and (viii) misappropriation of a trademark by an agent of the trademark owner are also regarded as unfair competition.

Regional brand products that abide by specific quality standards can be registered and geographical indication marks can be used for registered regional brand products.

(c) Copyrights protect works, which are productions in which thoughts or sentiments are expressed in a creative way and that fall within the literary, scientific, artistic or musical domain. Also, moral rights are given to the author of the work.

Registration of designs protects designs, which are the shapes, patterns, colors or any combination thereof of an article (including a part of an article) that create an aesthetic impression through the eye.

Layout-design exploitation rights protect layout-designs, which are the layouts of circuitry elements in semiconductor integrated circuits and the lead wires connecting such elements.

Breeders’ rights protect plant varieties, which are plant groupings where at least one of the important characteristics of a plant grouping enables it to be distinguished from any other plant grouping and such plant grouping can be propagated while maintaining all of its characteristics without change.

In respect of the name, the portrait and the like of an individual that appeals to consumers and can be used to promote the sale and the like of goods, the right to exclusively use such appeal is recognized as the right of publicity.

Among the above, patents, utility models, designs, trademarks, copyrights and moral rights, layout-design exploitation rights and breeders’ rights are recognized as intellectual property rights. The right of publicity can be recognized as an intellectual property right.

Hereinafter, the answers provided are in relation to patents, utility models, designs, trademarks and copyrights.

Cyprus Small Flag Cyprus

(a) Inventions may be protected nationally under a patent granted pursuant to the Patents Law, Law 16(I)/1998 (as amended), provided it is novel, demonstrates an inventive step and has an industrial application. Accordingly, discoveries, scientific theories and mathematical methods, as well as aesthetic creations, designs/ rules/ methods for carrying out intellectual activities for games- carrying out economic activities- computer software and data presentation cannot be subject to patent protection. In addition, no patents may be granted in relation to an invention which is considered to be contrary to public order or public morality.

It is important to note that inventions which have as their object a product which is made up of or contains biological material or a method for the production, processing or use of biological material, are patentable (biotechnology patents). Moreover, biological material which has been isolated from its natural habitat or has been produced with the aid of a technical method, may be the proper subject matter of an invention despite the fact that it pre-existed in nature.

The law clearly stipulates that plant varieties and animal species cannot be the proper subject matter of a patent, unless the patent in question could be industrially applied to more than one specific plant variety or animal species, in which case a patent may be granted. Similarly, patents may be granted over inventions which have as their object a microbiological method or other technical methods or products produced using such methods.

The human body, its various stages of development as well as the mere discovery of parts of the human body, including genome sequencing (whole or partial) are not patentable. In this vein, the law does not permit the grant of a patent of methods of human cloning, methods of altering genome genetic identity of the human species, uses of human embryos for industrial or commercial purposes, nor of methods of altering the genetic identity of animals who may be subjected to maltreatement without resulting into a major medical use to man or to animals or over animals who are produced using such methods.

Cyprus being a party to the Patent Cooperation Treaty, may be included in the designated countries where protection would be sought. The merits of an application filed thus would be examined in Cyprus in accordance with the provisions of the national Patents Law.

Moreover, Cyprus is a party to the European Patent Convention (‘EPC’) and thus an inventor may seek protection in Cyprus through the validation of a European patent in Cyprus. In case of any discrepancies between the EPC and the national patent law, the first prevails.

Supplementary certificates may be granted under conditions in relation to licensed pharmaceuticals. The certificate may grant a maximum of an additional 5-year period of protection, provided the annuities are duly paid.

There is no national law on trade secrets, despite the enactment of EU Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The deadline for enacting harmonisation legislation was 9th June 2018. Further, there are no specific laws on the protection of confidential information and/ or know-how. These may be protected contractually via specific agreements entered into between the parties.

(b) Brands may be comprehensively protected in Cyprus through trade mark protection, the tort of passing off and unfair competition, certification marks, collective trade marks, designations of origin and geographical indications.

The current law on trade marks is expected to be repealed within 2019 and be replaced with a new law which aims to align the national law on trade marks with EU Directive 2015/2436 on the approximation of the laws of the Member States relating to trade marks. The new legal framework is expected to provide new rules designed to create an efficient, transparent and modern trade mark system. Notable changes to the existing system include the abolition of the requirement that a trade mark must be graphically represented to be registrable, thereby paving the way for new types of marks to be registered such as holograms and multimedia marks. Further, the current single-class system will be replaced with a multi-class system, whilst the current initial 7-year period of protection will be replaced with an initial 10-year period of protection.

(c) Copyright is granted over scientific works, literary works (which include computer software), musical works, artistic works (including photographs), films, data bases, recordings, broadcastings, publications of previously unpublished works. Copyright is attached to the work upon its creation, as there is no registrability requirement. Copyright arises provided that the work is capable of fixation and the work is novel.

In addition to copyright, the Copyright and Neighbouring Rights Law, Law 59/1976 (as amended) recognises certain neighbouring rights over performances and enactments of works by artists.

Designs are protected nationally pursuant to the Law on the Legal Protection of Industrial Designs and Models Law, Law 4(I)/2002 (as amended). An industrial design or a model may be protected provided it is new, it demonstrates an individual character and it is filed for registration in accordance with the provisions of the law. An industrial design or a model are defined as ‘the appearance of the whole or part of a product which comes about as a result of its characteristics and in particular, as a result of its outline, its colours, the shape, the feel and/ or the materials of the product and/ or of the decoration it bears’.

Cyprus being a member of the EU, falls within the scope of protection resulting from the registration of an EU design.

Semiconductors are protected under a specific law, the law on the Legal protection of topographies of semiconductor products, Law 5(Ι)/ 2002.

Plant varieties are protected pursuant to the Law on the Protection of New Varieties of Plants, Law 21(I)/2004.

Switzerland Small Flag Switzerland

(a) Inventions:

According to the Federal Act on Patents for Inventions (PatA) patents are granted for new inventions applicable in industry. Anything that is obvious having regard to the state of the art is, however, not patentable as an invention. In addition, supplementary protection certificates can be granted in relation to active ingredients or combination of active ingredients of medicinal products, provided that the product as such, a process for manufacturing it or a use of it is protected by a patent and an official authorisation has been granted for placing the product on the Swiss market as medicinal product.

(b) Brands:

Distinctive brands, which are neither misleading nor contrary to public policy, morality or applicable law may be protected as trademarks, which are governed by the Federal Act on the Protection of Trade Marks and Indications of Source ("TmPA").
The TmPA also provides for the protection of so called guarantee marks, which may be used by several undertakings and guarantee specific characteristics (e.g. quality, geographical origin or the method of manufacture) of the goods and services sold under the guarantee mark. Further, associations (not individuals) can protect so called collective marks. A collective mark is a sign of an association of manufacturing, trading or service undertakings which serves to distinguish the goods or services of the members of the association from those of other undertakings. Finally, the TmPA provides for specific provisions regarding the protection of indications of source and geographical indications ("POA/PGI").

In addition, under the Federal Unfair Competition Act brands are protected against measures of third parties that may cause confusion or are considered as an act of passing-off.

(c) Other creations, technology and proprietary interests:

Creations (including artistic or scientific works and works of applied art) with an individual character, i.e. a certain degree of originality, can be protected by copyright (Art. 2 of the Federal Act on Copyright and Related Rights, "CopA"). Software is mainly protected by copyright in Switzerland. The CopA also protects related rights, i.e. rights of performers, phonogram and audio-visual fixation producers and broadcasting organisations.

A design, whether two- or three-dimensional, can be protected if it is new and has individual character, i.e. if its overall impression differs sufficiently from existing designs that could be known to the circles specialised in the relevant sector in Switzerland (Federal Act on the Protection of Designs).

Three-dimensional structures in the field of semiconductors can be protected as topographies under the Topographies Act.

Plant varieties and their designations are protected by the Federal Law on the Protection of New Plant Varieties.

(d) Rights in confidential information and/or confidential know-how:

Not registerable other technology and proprietary interests may also qualify as trade or business secrets, which may – depending on the circumstances of the individual case – be protected under the Swiss Criminal Code, the Unfair Competition Act and the Swiss Code of Obligations, but have to be mainly protected in the framework of agreements with business partners and through sufficient technical measures.

United Kingdom Small Flag United Kingdom

Rights identified below as "EU" or "Community" rights have geographical scope covering the EU. The other rights and causes of action are confined in geographical scope to the UK.

Patents

Patents are available for inventions that are new (novel), involve an inventive step and are capable of industrial application. Patents grant the inventor a period of exclusivity in return for the inventor disclosing the invention. There is a requirement that the invention be disclosed sufficiently clearly and completely for this to occur.

Some categories of development, for instance discoveries, business methods and computer programs, are not considered to be inventions and are not patentable unless they offer a technical contribution. There are also categories of invention which are excluded from patentability, for example if the invention is contrary to public policy or morality or falls within another exclusion.

In basic terms, there are two systems pursuant to which a patent may be granted covering the UK: the national system and the European Patent Convention (EPC) system. Either system may be preceded by, or may act as the receiving office for, an application under the international system through the World Intellectual Property Office (WIPO). Whichever system is employed, the patent that is granted is national in scope; European patents are, at present, filed as a single European application, but granted by the European Patent Office as a bundle of national designations.

As it can take some years after the patent has been filed in order to obtain regulatory approval for a pharmaceutical or plant protection product, supplementary protection certificates (SPCs) are available to extend the term of patent protection by up to five years in qualifying circumstances.

Trade secrets

In the UK, the law against misuse of confidential information has evolved in the tradition of the common law, to protect information that has the necessary quality of confidence and is subject to an obligation of confidence. In the UK, the tort of breach of confidence may assist in protecting against its unauthorised use. On 9 June 2018, the UK Trade Secrets (Enforcement etc.) Regulations 2018 came into force, to give effect to the EU Trade Secrets Directive, which broadly harmonises the law in this area in the EU. The Directive requires EU Member States to provide protection for trade secrets, which are defined (broadly) as information which (a) is secret, in the sense that it is not generally known or accessible in the circles that normally deal with the kind of information in question, (b) has commercial value because it is secret, and (c) has been subject to reasonable steps to keep it secret. In practice, the new legislation is not expected to lead to a significant change to the legal protection available for trade secrets in the UK.

The status of information as secret or confidential may be protected by an obligation of confidentiality arising under the common law or because of specific contractual terms (for example in employment contracts and non-disclosure agreements).

Registered trade marks

A mark or sign may be registered as a UK trade mark or a European Union trade mark if it is capable of distinguishing the goods or services of one undertaking from those of another, and of being represented on the register. It must also not be devoid of distinctive character or exclusively indicate the kind, quality, quantity or other characteristics of the goods or services. A mark which does not immediately appear to have distinctive character can acquire distinctiveness through use.

Registered trade marks can include a variety of forms such as words, domain names, colours and the shape of goods or packaging. There can also be non-traditional trade marks such as scents and sounds, but in practice, registration of non-traditional marks is difficult to obtain.

Marks such as certification, collective and hallmarks do not have the same function as ordinary trade marks but instead exist to provide an indication of standards or quality. Goods marked with a certification mark provide a guarantee that the goods or services bearing the mark meet a certain standard or possess a particular characteristic, whereas collective marks are an indication that the goods or services bearing the mark originate from members of a trade association. In contrast, hallmarks are a certification of a product's purity content in relation to precious metals including gold, silver and palladium.

Passing off

The tort of passing off can protect goodwill attached to goods or services in the UK. Passing off applies where there is a misrepresentation leading or likely to lead the public to believe the goods or services of a third party are those of the claimant or that some other authorised link (such a licence or endorsement agreement) exists between the claimant and the goods or services, and where the claimant suffers damage as a result. The tort can be used as a way of protecting unregistered trade marks, names, logos or get-up from being mis-used.

Registered designs

Designs that are new and have individual character can be registered as UK or "Community" (EU) designs. A design registration may be used to protect the appearance of the whole, or part, of a product, and may be a three-dimensional or two-dimensional design. It is not possible to register features of an article that perform a technical function or that interconnect with another part so as to perform a function, designs that are contrary to public policy or computer programs.

Unregistered designs

UK unregistered design right (UDR) protects any aspect of the shape and configuration of the whole or part of an article (whether external or internal) that is original, recorded in a design document or the subject of an article made to the design, and created by a qualifying person. UDR does not subsist in a method or principle of construction, the shape of an article that "must fit" another, or the appearance of an article that "must match" another. UDR does not protect two-dimensional designs such as ornamentation or surface decoration (which may be protected by copyright).

EU "Community" unregistered design right has a slightly broader scope of protection than UDR and protects both three-dimensional and two-dimensional designs.

Both UDR and Community unregistered design right arise automatically in qualifying circumstances. Infringement depends upon copying of the protected work (assessed qualitatively).

Copyright

Copyright may subsist in original works in any of the protected categories: literary, dramatic, musical and artistic works, sound recordings, films, broadcasts and typographical arrangements of published editions, provided the work qualifies by its author’s nationality or domicile or by the place of first publication of the work. Protection arises automatically when works are recorded in writing or some other form. Infringement depends upon copying the whole, or a substantial part, of the protected work (assessed qualitatively).

Database rights

Databases can be protected in two ways: by copyright and by the standalone database right. The standalone database right requires a substantial investment in obtaining, verifying or presenting the contents of a database.

Plant varieties

Plant variety rights are available, by registration, for new, distinct, uniform and stable plant varieties, and entitle the right owner to prevent others from reproducing or conditioning for propagation the relevant plant variety, or offering for sale, selling, exporting, importing or stocking for those purposes. Protection is available for the UK or throughout the EU.

Semiconductor topography rights

Semiconductor topography rights protect topographies in a pattern fixed on, or intended to be fixed on, a layer of a semiconductor product or a material used to make that semiconductor, or an arrangement of patterns fixed on the layers of a semiconductor. The protection arises automatically. Most original, integrated circuits are protected, provided the circuit has at least two layers, and one is made of a semiconducting material, with a pattern fixed to it for the purpose of performing an electronic function.

Brazil Small Flag Brazil

(a) Inventions (e.g. patents, supplementary protection certificates, rights in trade secrets, confidential information and/or know-how);

  • Patents – invention patents and utility model patents
  • Certificates of Addition
  • Confidential information and confidential know-how: protection of trade and company secrets is provided through unfair competition law.

(b) Brands (e.g. trade marks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees);

  • Trademarks, for product and service trademarks, certification marks and collective marks; famous marks/ highly renowned and well-known marks
  • Geographical Indications, which comprise denominations of origin and indications of source
  • Protection against unfair competition acts

(c) Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in trade secrets, confidential information and/or know-how).

  • Copyright and neighboring rights
  • Software Protection
  • Industrial Designs
  • Integrated Circuit Topographies
  • Plant Variety Rights (cultivars)
  • Protection of confidential know-how and business information (trade secrets).
  • Domain Name

Israel Small Flag Israel

a. Inventions (e.g. patents, supplementary protection certificates, rights in confidential information and/or know-how);

Patents, including patent term extensions for pharmaceutical and medical devices, and trade secrets

b. Brands (e.g. trade marks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees);

Trademarks, passing off and appellations of origin and geographical indications

c. Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in confidential information and/or know-how).

Copyrights, plant breeders' rights, integrated circuits, designs.

Cyprus Small Flag Cyprus

(a) Inventions may be protected nationally under a patent granted pursuant to the Patents Law, Law 16(I)/1998 (as amended), provided it is novel, demonstrates an inventive step and has an industrial application. Accordingly, discoveries, scientific theories and mathematical methods, as well as aesthetic creations, designs/ rules/ methods for carrying out intellectual activities for games- carrying out economic activities- computer software and data presentation cannot be subject to patent protection. In addition, no patents may be granted in relation to an invention which is considered to be contrary to public order or public morality.

It is important to note that inventions which have as their object a product which is made up of or contains biological material or a method for the production, processing or use of biological material, are patentable (biotechnology patents). Moreover, biological material which has been isolated from its natural habitat or has been produced with the aid of a technical method, may be the proper subject matter of an invention despite the fact that it pre-existed in nature.

The law clearly stipulates that plant varieties and animal species cannot be the proper subject matter of a patent, unless the patent in question could be industrially applied to more than one specific plant variety or animal species, in which case a patent may be granted. Similarly, patents may be granted over inventions which have as their object a microbiological method or other technical methods or products produced using such methods.

The human body, its various stages of development as well as the mere discovery of parts of the human body, including genome sequencing (whole or partial) are not patentable. In this vein, the law does not permit the grant of a patent of methods of human cloning, methods of altering genome genetic identity of the human species, uses of human embryos for industrial or commercial purposes, nor of methods of altering the genetic identity of animals who may be subjected to maltreatement without resulting into a major medical use to man or to animals or over animals who are produced using such methods.

Cyprus being a party to the Patent Cooperation Treaty, may be included in the designated countries where protection would be sought. The merits of an application filed thus would be examined in Cyprus in accordance with the provisions of the national Patents Law.

Moreover, Cyprus is a party to the European Patent Convention (‘EPC’) and thus an inventor may seek protection in Cyprus through the validation of a European patent in Cyprus. In case of any discrepancies between the EPC and the national patent law, the first prevails.

Supplementary certificates may be granted under conditions in relation to licensed pharmaceuticals. The certificate may grant a maximum of an additional 5-year period of protection, provided the annuities are duly paid.

There is no national law on trade secrets, despite the enactment of EU Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The deadline for enacting harmonisation legislation was 9th June 2018. Further, there are no specific laws on the protection of confidential information and/ or know-how. These may be protected contractually via specific agreements entered into between the parties.

(b) Brands may be comprehensively protected in Cyprus through trade mark protection, the tort of passing off and unfair competition, certification marks, collective trade marks, designations of origin and geographical indications.

The current law on trade marks is expected to be repealed within 2019 and be replaced with a new law which aims to align the national law on trade marks with EU Directive 2015/2436 on the approximation of the laws of the Member States relating to trade marks. The new legal framework is expected to provide new rules designed to create an efficient, transparent and modern trade mark system. Notable changes to the existing system include the abolition of the requirement that a trade mark must be graphically represented to be registrable, thereby paving the way for new types of marks to be registered such as holograms and multimedia marks. Further, the current single-class system will be replaced with a multi-class system, whilst the current initial 7-year period of protection will be replaced with an initial 10-year period of protection.

(c) Copyright is granted over scientific works, literary works (which include computer software), musical works, artistic works (including photographs), films, data bases, recordings, broadcastings, publications of previously unpublished works. Copyright is attached to the work upon its creation, as there is no registrability requirement. Copyright arises provided that the work is capable of fixation and the work is novel.

In addition to copyright, the Copyright and Neighbouring Rights Law, Law 59/1976 (as amended) recognises certain neighbouring rights over performances and enactments of works by artists.

Designs are protected nationally pursuant to the Law on the Legal Protection of Industrial Designs and Models Law, Law 4(I)/2002 (as amended). An industrial design or a model may be protected provided it is new, it demonstrates an individual character and it is filed for registration in accordance with the provisions of the law. An industrial design or a model are defined as ‘the appearance of the whole or part of a product which comes about as a result of its characteristics and in particular, as a result of its outline, its colours, the shape, the feel and/ or the materials of the product and/ or of the decoration it bears’.

Cyprus being a member of the EU, falls within the scope of protection resulting from the registration of an EU design.

Semiconductors are protected under a specific law, the law on the Legal protection of topographies of semiconductor products, Law 5(Ι)/ 2002.

Plant varieties are protected pursuant to the Law on the Protection of New Varieties of Plants, Law 21(I)/2004.

Germany Small Flag Germany

1 What different types of intellectual property rights exist in your jurisdiction to protect:

(a) Inventions (e.g. patents, supplementary protection certificates, rights in trade secrets, confidential information and/or know-how);

  • Patents
  • Supplementary protection certificates (for medicinal products and plant protection products);
  • Utility models;
  • Confidential information and confidential know-how: protection of trade secrets is provided through the Act on the Protection of Trade Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen, GeschGehG) which entered into force on 26 April 2019 and implements Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

(b) Brands (e.g. trade marks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees);

  • Registered trade marks
  • Unregistered trade marks established by
  • market recognition or
  • notoriety within the meaning of Article 6 of the Paris Convention for the Protection of Industrial Property 1883 (Paris Convention)
  • Business names: company names and work titles enjoy protection similar to trade marks under German trade mark law
  • Geographical indications, designations of origin, traditional speciality
  • Supplementary protection of creative property under competition law

(c) Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in trade secrets, confidential information and/or know-how).

  • Registered design rights;
  • Copyright, database rights;
  • Semiconductor topography rights;
  • Plant variety rights;
  • Protection of confidential know-how and business information (trade secrets). Trade secrets in the sense of the Act on the Protection of Trade Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen, GeschGehG) means information which meets all of the following requirements:

(a) it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question and has commercial value for that reason; and

(b) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret; and

(c) there is a legitimate interest in keeping it secret.

Italy Small Flag Italy

(a) Inventions

Under Italian Law, the following rights are protected:

Patents for invention: Under Italian Law, inventions must meet several requirements to be eligible for patent protection.
These include, in particular, that the claimed invention:

  • Consists of patentable subject-matter; discovery, scientific theories and mathematical methods; b) plans, principles and methods for intellectual activities, plays or commercial activity and computer programs; c) information presentations are not patentable.
  • Is new (requirement of novelty);
  • Involves an inventive step (requirement of non-obviousness);
  • Is capable of industrial application (requirement of utility); and
  • Is disclosed in a clear and complete manner in the patent application (requirement of disclosure, sufficiente descrizione).

Utility models: consists in a shape of a product capable to confer effectiveness or ease of application to machines or parts of them, instruments, tools or objects of general use. Therefore, utility model always consists of a new form of a known product.

Trade secret: Article 98 of the Italian Legislative Decree 30/2005 (the Italian Intellectual Property Code, or the "IPC") — which is consistent with Article 39.2 of the TRIPs Agreement — the elements for the constitution of the IP right for trade secret protection require that "business information and technical-industrial expertise, including commercial ones":

a) be secret, meaning that they shall not be generally well-known or readily accessible for experts and operators in the field;

b) have an economic value because they are secret; and

c) have been subject, by their "owner", to measures that may be deemed reasonable to keep them secret.

(b) Brands

Marks, business names and trade names are the typical forms of distinctive sign in the Italian legal system (segni tipici). There are also distinctive signs that are non-typical (segni atipici) but nonetheless have the function of identifying the business and communicating, including advertising slogans, trade dress and domain names.

With specific respect to trademarks, there are various categories, which differ based on the nature of the sign. Using the list set out in the law as a reference and in particular in IPC and further amendments a trademark can be comprised of (i) words, be they actual or fanciful, or (ii) drawings. Typically, trademarks are classified, in the first case, as word trademarks and in the latter case as figurative trademarks. Trademarks comprised of both words and images, on the other hand, are typically classified as complex trademarks. The complex marks are typically made up of a distinctive core and further secondary elements (marchi complessi). There are also marks that combine elements that would not be distinctive when taken alone (marchi d'insieme). A trademark can also be a person's name, in which case it is classified as a patronymic trademark. In addition to words and images, the law also allows registration as trademarks of numbers and letters in the alphabet. The IPC does not expressly mention the possibility for the applicant to file a trademark application for other types of signs, such as smell, position, movement, tactile and gustative marks. Despite this fact, Italian undertakings are increasingly focusing their attention on these kind of signs as trademarks. Nowadays, amongst the elements that can be granted trademark protection, especially in the fashion industry, there are some elements of the products. These elements, originally created as decorative or merely aesthetic signs, are becoming a symbol, like the essence of the 'exclusive style' of a certain brand.

Legislative Decree no. 15 of 20 February 2019 which implemented EU Directive 2015/2436 ("LD 15/2019") no longer requires the graphic representation of the sign in order to register it as trademark. This amendment broadens the scope of protection of the trademark, considering that also new types of signs (such as smells or sounds) may be protected as a trademark.

The Italian system also recognizes unregistered trademarks (or de facto trademarks).

The fundamental condition to be met to obtain trademark protection for unregistered trademarks, but also to ground an unfair competition claim, is to demonstrate that the unregistered mark is perceived by the general public as an indication of the origin of the product or has become well known/notorious in the relevant market (so called "notorietà qualificata").

This burden of proof is up to the unregistered trademark owner and it is not always an easy proof.

If the unregistered trademark is known only at a local level, the registration of a following identical trademark is permitted, but the owner of the previous unregistered trademark is always allowed to continue the use of the sign within the limits of such use (so-called diritto di preuso).

Any legal person or associations of manufacturers, producers, suppliers of services or traders can register a "collective trademark". The collective trademark is a sign capable of distinguishing the goods or services deriving from the members of the legal person/association owner of the trademark from the goods or services of other undertakings.

Under Italian law, a collective trademark may also consist in signs or wording that designate the geographical origin of goods or services. In this case, any person whose goods or services originate from such geographical location may be entitled to use the collective trademark or to become a member of the association that registered the collective trademark.

Recently LD 15/2019 has introduced the possibility for any natural or legal person, including institutions, authorities and bodies governed by public law, to apply for "certification trademarks". The certification mark is a sign capable of distinguishing goods or services that are certified by the owner of the trademark as to materials, mode of manufacture, quality, accuracy or other characteristics, from goods and services that are not so certified. Moreover, it is possible for certification trademark to be a signs or wording to designate the geographical origin of the goods or services; in this case the owner of the certification trademark cannot prevent third parties from using the signs or wording, provided that the third party uses them in accordance with honest practices.

Moreover, Law no. 58 of 28 June 2019 has introduced the so-called historic trademark of national interest ("Marchio storico di interesse nazionale").

Law no. 58 of 28 June 2019 enables the owners or the exclusive licensees of signs that (i) have been registered for more than 50 years and (ii) are used for goods or services deriving from a company of national excellence and historically linked to the national territory, to register their trademark in the special register of historic trademarks of national interest. In this case the owners or exclusive licensees of the registered historic trademark of national interest are entitled to use the related logo for marketing and promotional purposes. Some Italian scholars have criticized this new category of historic trademark of national interest and the amendments introduced by Law no. 58 of 28 June 2019. Particularly they point out that the initial proposal for the Law provided that the relocation of production from the original territory to another would lead to the cancellation of the historic trademark of national interest. This provision would have forced a company to maintain the production/manufacture of the product in the specific territory designated in the special register of historic trademark of national interest in order to be allowed to use the sign. The subsequent version provides that in case of relocation of production, the owner or the licensee of the historic trademark of national interest should promptly notify the Italian Ministry of Economic Development. The Italian Ministry of Economic Development may start a procedure to determine the appropriate actions to be taken, including purchasing the company' s obligations on market terms.

(c) Other creations, technology and proprietary interests

Copyright protects works of the mind having a creative character and belonging to literature, music, figurative arts, architecture, theatre or cinematography, whatever their mode or form of expression. Italian Copyright Law (Law 22 April 1941, no. 633, "ICL") indicates no specific level of creativity required to qualify for protection; in practice, according to the prevailing case law and scholars, a minimum of creativity is generally regarded as sufficient. The assessment by the courts as to whether there is a sufficient level of originality is a question of fact.

Article 2 ICL sets out a list of protected works that may be afforded copyright protection. Please note that such list is not exhaustive. Indeed, case law has considered several cases of works such as TV formats, multimedia works, website, maps and recipes not included in the above-mentioned list, recognizing copyright protection provided that the works fulfil the requirement of originality.

Pursuant to the Italian legal framework, as amended in 2001, industrial design is granted copyright protection on condition that it displays not only creative features, but also 'artistic value' (valore aristico). The 'artistic value' is a special, additional requirement applicable only to industrial design works; it requires, as interpreted by the Italian Courts, evidence of public rewards or acknowledgments by art critics, museums or exhibits. A part of the copyright protection (subject to the special additional requirement of the 'artistic value'), the industrial design, can be registered as a design model, according to Articles 31 and following of the IPC. The registration as a design model is subject to the requirement of novelty, individual character (i.e., the general impression of the appearance of the design) and lawfulness. The duration of the protection is five years, renewable for up to a maximum of 25 years.

In Italy, industrial designs may enjoy double protection, although the requirements for copyright protection and registered design model are very different and both can seldom be proven in relation to the same work.

Article 2 ICL expressly lists software among copyrightable subject-matters and allows copyright protection on condition that the software is original and the result of the author’s intellectual creation. In accordance with the European Patent Treaty, software cannot be protected by patent law as such, but only if has a technical effect that is new and non-obvious.

Copyright law protects databases, which are defined as a compilation of data or other materials that are arranged according to a system or a method and are individually accessible by electronic or other means. This type of work is afforded copyright protection on condition that it is original, i.e., the criterion of selection and/or arrangement is non-technically imposed and is non-obvious.

Article 2 ICL specifies that copyright law does not extend to the contents included in the database, and covers only the database's structure, i.e., the manner in which the materials are selected and arranged. In other words, the copyright protection to database may offer protection to a limited scope, since copyright covers the way data is compiled and not the content of the compilation (data) or the algorithm used. This limitation has led to the establishment of a sui generis regime of protection for databases, on the basis of which the maker of the database, who has made quantitative or qualitative substantial investment in collecting, verifying and presenting the contents, may enjoy broader protection, of up to 15 years, and renewable providing that a new investment is made. The sui generis right consists in the exclusive right to control the extraction and the re-utilization of the data put into the database.

These two forms of protection can be cumulative, although the holders of the right may be different: the copyright protection to the creative database is granted to the 'author', who does not necessarily coincide with the 'maker, i.e. the person who made the substantive investment, who is the holder of the sui generis right.

The right to a new plant variety may consist of a group of plants in a botanical taxon of the lowest grade known that, whether it is or is not entirely consistent with the conditions set for the granting of the breeder's right, can be: (i) defined based on characteristics resulting from a given genotype or a given combination of genotypes; (ii) distinguished from any other group of plants based on the expression of at least one of said characteristics; and (iii) considered as a unit with regard to its suitability to be reproduced unchanged.

Exclusive rights may be granted for topographies if they are the result of the creative intellectual efforts of their author that are not common or familiar within the semi-conductor product industry. Exclusive rights may also be granted for topographies resulting from the combination of common or familiar elements, provided that as a whole they meet the requirements of creative intellectual efforts of their author that are not common or familiar to the industry.

France Small Flag France

(a) Inventions (e.g. patents, supplementary protection certificates, rights in trade secrets, confidential information and/or know-how);

i. Patents

Under French law, inventions are protected by patents, supplementary protection certificates and utility certificates (Article L.611-1 and L.611-2 of the French Intellectual Property Code “IPC”).

Patent rights are granted for inventions of either products or processes in any fields of technology.

Patentability conditions are cumulative, the invention has to:

• be new (Article L.611-11 IPC);

An invention is new if it is not part of the state of the art defined as "everything made available to the public before the date of filing of the patent application". Novelty is destroyed only if the invention is found as a whole in a single prior art reference, contrary to a combination of several references.

• involve an inventive step (Article L.611-14 IPC);

An invention involves inventiveness if, having regard to the state of art, it is not obvious to a person skilled in the art.

• be susceptible of industrial application (Article L.611-15 IPC).

An invention shall be considered as susceptible of industrial application if it can be made or used in any kind of industry, including agriculture.

In addition, the development at stake should not be excluded from patentable subject matter (Article L.611-10 of the IPC).

The patent is granted for a period of protection of twenty years from the date of the application (Article L.611-2 IPC).

ii. Utility certificates

A utility certificate is granted under the same conditions than a patent, meaning, the invention has to be new, involve an inventive step and be susceptible of industrial application. However, contrary to patents, there will be no research report or substantive review before the French Office of Intellectual Property (INPI).

The utility certificate grants a monopoly of exploitation over an invention but for a maximum period of six years instead of twenty years (Article L.611-2 IPC).

It should be noted that the Bill of Law PACTE (Action Plan for Business Growth and Transformation) - which should come into force in the coming months - will extend the protection period of utility certificates from six years to ten years from the application date and allow the conversion of the utility certificate into a patent application.

iii. Supplementary protection certificates

A supplementary protection certificate is a title covering pharmaceutical and plant products that are themselves under the protection of a valid patent.

This certificate aims to extend the protection period of these products taking into account the time required to obtain a marketing authorisation.

To this end, the supplementary protection certificate takes effect at the expiry of the patent for a period up to seven years from the lapse of the patent or seventeen years from the grant of the marketing authorisation (Article L. 611-2 IPC).

The patent holder has to apply for the certificate within a delay of six months:

• from the date of issuance of the marketing authorisation (if the patent was delivered before the marketing authorisation); or

• from the date of grant of the patent was delivered (if the marketing authorisation was delivered before the patent).

iv. Trade secrets, confidential information and know-how
The Directive EU 2016/943 on the protection of undisclosed know-how and business information has been implemented into French law by the law n°2018-670 of July 30th 2018.
Trade secrets are now defined in French law on the basis of three cumulative criteria (Article L.151-1 of the Code of Commerce).

To qualify for protection the information must:

• not be generally known or easily accessible to the relevant business sector, in itself, or in the exact configuration and assembly of its components; and

• be of commercial value, actual or potential, because of its secret nature; and

• be subject to reasonable protection measures by its holder to keep it secret.

In case of infringement, the holder of a trade secret can request to the court interim measures such as (Article L.152-3 of the Code of Commerce):

• an injunction to prevent or to forbid the use or the disclosure of the trade secrets;

• an injunction to forbid the production, the sale, the marketing or the use of products resulting significantly from the infringement or the import, export or storage of such products for these purposes;

• the total or partial destruction of any document, object, material, substance or digital file containing the trade secret concerned or from which it may be deduced or, if appropriate, order their total or partial delivery to the applicant;

• the recall from commercial channels or the permanent withdrawal from such channels of products resulting from the infringement;

• the modification of the products resulting from the infringement;

• the destruction or the confiscation of the products resulting from the infringement.

It should be noted that, under certain conditions, the court can grant a financial compensation instead of the said interim measures (Article L.152-5 of the Code of Commerce).

For the assessment of damages on the merit, the court will take into account, distinctly:

 the negative economic consequences suffered by the injured party, including lost profits and any losses incurred;

 the moral prejudice incurred by the rights holder from the infringement;

 the unfair profits earned by the infringing party, including the investment savings regarding to the intellectual, material or promotion work.

Alternatively, the court may at the request of the injured party, award a lump sum as damages, taking into account in particular the rights that would have been due if the infringer had requested authorisation to use the trade secret in question.

The new set of rules co-exists with existing French legislation protecting manufacturing secrets, defined by case-law as "any manufacturing process offering a practical or commercial interest, implemented by a manufacturer and kept secret to its competitors" protected by the IPC (Article L.621-1) and the Labor Code (Article L.1227-1) which criminally sanction the actual or threatened disclosure of a manufacturing secret by any director or employee. Equally, existing criminal offences set out in the French Criminal Code will be maintained, such as theft, robbery and handling stolen goods (relevant in circumstances where documents containing the information have been stolen), fraud and breach of professional duties of secrecy.

(b) Brands (e.g. trade marks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees);

i. Trademarks

Pursuant to the actual French Law, any sign capable of being graphically represented and distinguishing the goods or services of an undertaking from those of another can be registered as a trademark (Article L.711-1 of the IPC).

Such a sign may be constituted by:

• denomination in all forms, such as: words, combinations of words, surnames and geographical names, pseudonyms, letters, numerals, abbreviations;

• audible signs such as: sounds, musical phrases;

• figurative signs such as: devices, labels, logos, shapes, combinations or shades of colour.

However, in view of the implementation of EU trade mark directive 2015/2436, the Bill of Law PACTE should introduce major changes into French trade mark law, in particular:

• the French government will be authorized to legislate by way of decree to approximate the laws of the Member States relating to the trademarks. The major developments to be expected in this respect include:

o the removal of the graphical representation requirement (therefore, different kind of sign such as taste, smell or motion could be registered as trademarks);

o the extent of absolute grounds for refusal for three-dimensional trademarks: until now, it was stated that a three-dimensional trade mark could only be registered if the sign was not exclusively constituted by the shape imposed by the nature or functions of the product. The Directive now also excludes the following signs from registration:

‐ signs which consist exclusively of the shape, or another characteristic, of goods which is necessary to obtain a technical result; and

‐ signs which consist exclusively of the shape, or another characteristic, which gives substantial value to the goods.

These changes are expected to be implemented into FrenchLaw by the end of July 2019.

ii. Collective and certification marks

Both collective and certification marks are recognized under French law. Pursuant to Article L.715-1 of the IPC:

• a collective mark is a trademark which “may be used by any person who complies with regulations for use issued by the owner of the registration”. Once the collective mark application is filed and published by the INPI, the filing of the regulation for use will follow;

• a certification mark “is affixed to goods or services that complies, in particular, with regard to their nature, properties or qualities, with the characteristics detailed in the concerned regulations”. The regulation for use is filed together with the certification mark application and edited by a legal person in charge of the certification.

iii. Unfair competition or passing off

Unfair competition or passing off aim to protect against the unauthorized use of other related rights identifying an undertaking such as unregistered trademark, company names and domain names.

Pursuant to case-law, the reproduction or the imitation of a party’s distinctive signs or proprietary elements, other than a trademark, amounts to unfair competition if it is likely to create a risk of confusion in the minds of customers, it being specified in this respect that the risk of confusion is assessed according to the same principles than for trademark infringement.

Unfair competition or passing off are sanctioned by the French courts on the ground of Article 1240 of the French Civil Code. In that respect, as for the civil liability action, a fault (i.e. the creation of a likelihood of confusion for the public), a damage and a causal link between the two have to be proved in order to have a successful action.

In regards to the relation between infringement action and unfair competition or passing off action, one does not exclude the other. However, the French Supreme Court frequently recalls that damages resulting from unfair competition can be granted only if the action based on unfair competition is supported by different facts from the action for infringement.

The purpose is to avoid double compensation upon the same facts (French Supreme Court, 14 November 2018, No P 17-12.454).

iv. Designations of origin, geographical indications and traditional speciality guarantees

• designations of origin protect the denomination of a region and designate products originating from it, their quality or characteristics being attributable to natural and human factors specific to the said location (Article L.721-1 IPC, Article L.115-1 of the French Consumer Code and Article L.641-5 of the Rural and Sea Fishing Code). Designations of origin are intended for the protection of food and agriculture products, unlike the geographical indications. The designations of origin application is filed together with the specifications for which the product will have to comply.

• geographical indications, which are specific to France, protect handmade or industrial products such as Limoges porcelain (Article L.721-2 IPC). The geographical indication application is filed together with the specifications for which the product will have to comply.

• traditional specialty guarantee refers to a product whose specific qualities are linked to a composition, manufacturing or processing methods based on a tradition, without however, necessarily having any link with its geographical origin. Traditional speciality guarantees are intended for the protection of food and agriculture products (Articles R. 641-1 to R. 641-10 of the Rural and Sea Fishing Code). The traditional specialty guarantee application is filed together with the specifications for which the product will have to comply.

(c) Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights).

i. Copyright

Copyright protects original works of the mind, regardless of their kind, form of expression, merit or purpose, from the mere act of creation (Article L.111-1 and L.112-1 of the ICP). No registration is therefore required.

Copyright covers many different categories such as literary writings, dramatic, musical, artistic, choreographic, graphical and photographic work but also lectures, pleading, software etc. provided that there are original and concretely formed. In this respect, ideas and concepts are not granted any protection by copyright.

Originality is not defined by the IPC, however, French courts consider that a work is original if it reflects the personality of its author and determine whether a work is original on a case-by-case basis.

Under the French copyright law, there are two types of rights:

• patrimonial rights, which protect the economic interests of the author, are (Article L.122-1 IPC et seq.):

o the right of representation;

o the right of reproduction.

• moral rights, which protect the non-economic interests of the author, are (Article L.121-1 IPC et seq.):

o the right of disclosure;

o the right of paternity;

o the right of integrity;

o the right of withdrawal.

ii. Neighbouring rights

Neighbouring rights protect:

• performers (Article L.212-1 of the IPC);
• phonogram producers (Article L213-1 of the IPC);
• videogram producers (Article L.215-1 of the IPC);
• audiovisual communication companies (Article L.216-1 of the IPC).

The EU directive on copyright in the Digital Single Market, adopted on March 26th 2019, introduces protection of press publications for online uses and provides that: “Member States shall provide that the authors of the works incorporated in a press publication receive an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers.”

Such protection of press publication has a limitation period of two years starting from the first day of January following the year of publication of the press publication.

One exemption remains, this protection does not apply to private or non-commercial uses of press publications carried out by individual users.

The Member states have to comply with the Directive by March 26th 2021.

iii. Databases

Databases are defined as collections of works and data arranged in a methodical way and individually accessible. They can be protected either through copyright or through a sui generis right. Qualification for sui generis protection requires substantial investments in the constitution, verification or presentation of the database (Article L.341-1 of the IPC).

iv. Design rights

Design rights protect the appearance of the whole or part of an industrial or handcraft product, resulting from its features, colours, shape, texture or materials provided that it is new and has individual character (Article L.511-1 and L.511-2 of the IPC). Functional forms and designs contrary to public policy or morality are excluded from protection.

In France, design can be protected through national or European registration, it being specified that European law also provides with unregistered design rights.

v. .Semiconductor right

Semiconductor rights protect uncommon topographies reflecting an intellectual effort (Article L.622-1 of the IPC). Such uncommon topographies shall neither have been commercially exploited anywhere more than two years before its filing, nor fixed or encoded when it was not been exploited more than fifteen years before it has been fixed or encoded.

vi. Plant variety rights

Plant variety rights protect new, distinct, stable and sufficiently uniform plant breeding (ArticleL623-1 of the IPC).

In this respect a new plant variety may be granted a certificate which shall confer on its owner an exclusive right to produce, reproduce, package for their reproduction or vegetative propagation, offer, sell or commercialize in any form, export, import or used for any of these purposes reproduction or vegetative propagation material. (Article L.623-4 of the IPC).

India Small Flag India

(a) Inventions:

In India, patents are governed by the Indian Patent Act, 1970. However, rights in confidential information and trade secrets (know-how) do not have any separate legislation for the protection and the same is protected and governed under the contract law. Supplementary protection certificates are not available in India.

(b) Brands:

  • Trade marks
  • Cause of action in passing off
  • Right to prevent unfair competition (under competition laws)
  • Collective marks
  • Certification marks
  • Hallmarks
  • Geographical indications
  • Domain Name
  • traditional speciality / guarantees (not applicable in India)

(c) Other creations, technology and proprietary interests:

  • Copyrights
  • Designs
  • Semiconductors and integrated circuits
  • Plant varieties
  • Database rights

Peru Small Flag Peru

(a) Inventions (e.g. patents, supplementary protection certificates, rights in confidential information and/or know-how);

(b) Brands (e.g. trademarks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees);

(c) Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in confidential information and/or know-how).

According to the Peruvian national legislation, we have the following intellectual property rights:

  • The Decision 486 and Legislative Decree No. 1075 indicates as industrial property rights: patents, protection certificates, utility model patents, industrial designs, business secrets, circuit layout designs integrated, trademarks of products and services, collective marks, certification marks, trade names, commercial slogans and designations of origin.
  • The Decision 351 and Legislative Decree 822 regulates matters concerning copyright, recognizing the moral and patrimonial rights for authors and owners of the different types of works.

Greece Small Flag Greece

a. Inventions (e.g. patents, supplementary protection certificates, rights in trade secrets, confidential information and/or know-how);

Protection of inventions that are new, involve an inventive step and are susceptible to industrial application can be obtained via patents. Inventions concerning novel and industrially applicable three-dimensional objects with a definite shape and form, such as tools, instruments, devices, apparatuses, or parts thereof, which are proposed as novel and industrially applicable and capable of giving a solution to a technical problem can be protected as utility models. In the case of patents for medicinal and plant protection products the duration of the patents can be extended for a period of (maximum) 5 years via Supplementary Protection Certificates (SPCs).. Inventions can also be protected under unfair competition law.

Until recently, trade secret holders had to rely mainly on the provisions of unfair competition law. Law 4605/2019, which transposed into Greek Law the Directive (EU) 2016/943, established for the first time an efficient national framework for the legal protection of trade secrets against their unlawful acquisition, use or disclosure by third parties.

b. Brands (e.g. trade marks, cause of action in passing off, rights to prevent unfair competition, association marks, certification marks, hallmarks, designations of origin, geographical indications, traditional speciality guarantees);

Trademark rights are primarily obtained through registration. Three types of registration are available: national, EU and international. Use of a sign in the course of trade may result in a non- registered sign, protected under the law of unfair competition.

Cooperatives, associations of manufacturers, producers, suppliers of services, or traders with legal capacity, as well as legal persons governed by public law rules, can file applications for collective marks in order to distinguish the origin of goods or services of their members or the geographical origin, the kind, the quality or properties of such goods or services.

Designations of origin and protected geographical indications are considered as quasi- intellectual property rights, not creating individual rights.

c. Other creations, technology and proprietary interests (e.g. copyright, design rights, semiconductor topography rights, plant varieties, database rights, rights in trade secrets, confidential information and/or know-how).

Copyright and related rights enjoy specific legislative protection and do not need registration to be protected. Software and databases are protected under copyright law, whereas databases are also protected by a sui generis right in case they do not qualify for copyright protection.

Topographies of semiconductor products are protected by specific legislation whereas types of IP rights not protected by specific legislation (e.g. business methods, know- how (not patentable), business names etc) are protected under the law of unfair competition.

According to the leading opinion, the protection offered by unfair competition law is concurrent with protection under any specific legislation.

Regulation (EC) 2100/1994 with respect to plant variety rights is directly applicable in Greece. However, national plant variety registration is not possible since the presidential decree that would have implemented Greek plant varieties law 1564/1985 has yet to be published.

Malta Small Flag Malta

Patents

Inventions satisfying patentability requirements in Malta can obtain patent registration protection by virtue of Chapter 417 of the Laws of Malta, the Patents & Designs Act. Malta is also party to the European Patent Convention and the PCT, Patent Cooperation Treaty. SPC, Supplementary Protection Certificates can also be obtained in Malta solely in relation to medicinal and plant products. SPCs extend the ultimate term of a patent to compensate for the time spent in obtaining regulatory clearance for a patent.

Trade Secrets

There are also measures protecting confidential information through tort law and trade secrets. With regard to the latter, Malta has just transposed the Trade Secrets Directive into Maltese law.

Trademarks

The registration of Trademarks has long been catered for under Maltese law. The new Chapter 596 of the laws of Malta, the Trademarks Act (2019) has transposed the mandatory provisions of the EU’s Trademark Directive 2015/2436 (TMD). The EUTM Regulation 2017/1001 also has direct effect in Malta and therefore a registered EUTM is also recognised in Malta as an earlier right by virtue of the new Trademarks Act. Trademarks under both National Legislation and EU regulations may be collective or certificate marks.

Geographical indications, designations of origin and denominations of origin can also obtain protection under separate legislation (not the Trademarks legislation) and strictly speaking are not defined as IPRs.

Unfair Competition

Maltese law also provides protection from passing of for unregistered marks, names and distinctive devices from similar marks capable of causing confusion under the provisions relating to unfair competition under Chapter 13 of the laws of Malta, the Commercial Code.

Copyright

Author’s moral and economic rights are protected by virtue of Chapter 415 of the laws of Malta, the Copyright Act. The act caters for literary works (including computer programs) as well as artistic works, audiovisual works, musical works and databases. The sui generis database right provided by the Database directive is also transposed in the same act. The act also provides for the sui generis right of semi conductor product topographies.

Malta is also party to the Berne Convention, the Universal Copyright Conventions, the TRIPS agreement and the WIPO Copyright Treaties (the WPPT and the WCT).

Designs

Registered design protection can be obtained by virtue of a national design registered in terms of Chapter 417 of the laws of Malta, the Patents and Designs Act or a community design registered by virtue of the Community Design Regulation 6/2002. The latter also caters for the EU unregistered design right which is also applicable in Malta.

Plant variety rights are granted in Malta by virtue of the European procedure in this regard.

Plant variety rights are not categorised by Maltese law as intellectual property rights at present, and they do not fall within the remit of the Industrial Property Registrations Directorate (IPRD). They are, nevertheless, given a form of recognition and protection.

Trade Secrets

Official protection for Trade Secrets has recently been introduced in Malta following an EU wide harmonisation measure in the form of Directive 2016/943/EU on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The Trade Secrets Act, which came into force in May 2019 seeks to protect information which fulfils a list of requirements relating to the requirement of secrecy, commercial value, and a series of reasonable steps undertaken to ensure the secrecy of such information.

Saudi Arabia Small Flag Saudi Arabia

Saudi Arabia protects all forms of intellectual property rights including, Trademarks, Patents, Plant Variety, Integrated Circuits, Copyrights, trade secrets or confidential information, and Design rights. In case of Patents, Integrated Circuits, Plant Variety, Trademarks and Industrial Designs, registration if mandatory for protection. Copyrights does not require registration for protection as long as the work falls within the protectable subject matter. There are different ways and means to protect other un-registered rights including trade secrets or confidential information.

Australia Small Flag Australia

  1. Patents – a patent is a legally enforceable right that protects inventions relating to a device, substance, method or process. For a patent to be granted, the claimed invention must be new, useful and inventive or innovative. There are two different types of patents that are granted in Australia: the standard patent and the innovation patent. An innovation patent protects minor or incremental “inventions” that do not meet the higher inventive threshold required for standard patents. This type of patent was intended to provide a second tier of protection to meet the needs of medium and small businesses. A standard patent provides a patentee with a monopoly over the claimed invention for a period of 20 years, as compared to 8 years for an innovation patent. As such, the threshold for obtaining a standard patent is higher and requires an inventive (compared with innovative) step.
  2. Trade marks – a trade mark is a sign (such as a name, brand or device) used, or intended to be used, to distinguish the goods and services or services dealt with or provided by one person from the goods or services dealt with or provided by another.
  3. Geographical indications – a geographical indication (GI) identifies a good as originating in a specific region where a particular quality, reputation or other characteristic of the good is attributable to that geographic origin. GIs have rules that set out the qualities or characteristics of the good on which the GI is allowed to be used. These rules provide assurance to consumers that they are purchasing a product with specific qualities.
  4. Passing off and rights to prevent unfair competition (misleading or deceptive conduct) – the tort of passing off and the prohibition on misleading and deceptive conduct provide protection to brands in the absence of a registered trade mark. The tort of passing off protects a brand’s goodwill by prohibiting misrepresentations as to the source of the goods. The misleading or deceptive conduct provision of the Australian Consumer Law prohibits a person, including a company, in trade or commerce from engaging conduct that is misleading or deceptive or is likely to mislead or deceive.
  5. Copyright – copyright protects the original expression of an idea, if that idea is expressed in a material or tangible form. The two types of subject matter protected by copyright are: ‘works’ (i.e. literary, dramatic, artistic, and musical works); and, ‘subject matter other than works’ (i.e. sound recordings, films, television broadcasts and published editions). Copyright does not, for example, protect ideas, concepts, facts, systems, methods, newspaper headlines and most 3D objects. For works created or produced in Australia, the author is given automatic copyright protection at the time that a work is fixed in a material form. For subject matter other than works, there is no requirement of originality, instead copyright will subsist in certain circumstances, for example, where the maker of a sound recording, or film is an Australian citizen and the sound recording or film was first made or published in Australia. There is no Australian register of copyright and also no requirement to use any special notices or symbols to obtain copyright protection, or to positively claim copyright, for copyright rights to arise.
  6. Registered designs – design registration protects the overall appearance of a product that has an industrial or commercial use. The overall appearance takes into account one or more visual features of the product, such as: shape, configuration, pattern, and ornamentation which, when applied to a product, gives it a unique visual appearance. A design is a registrable design if it is new and distinctive, as compared with the prior art base as it existed before the priority date of the design.
  7. Plant breeder’s rights (PBRs) – PBRs are used to protect new varieties of plants that are distinct, uniform and stable. Only eligible new or recently exploited varieties can be registered. A new variety is one that has not been sold with the breeder’s consent beyond the allowable time period. A recently exploited variety is a plant that has not been sold with the breeder’s consent beyond 12 months. For overseas varieties, the plant should not have been sold for more than four years. In certain circumstances, PBRs can also extend to essentially derived varieties, dependent varieties, and to harvested material.
  8. Circuit layouts – circuit layouts are the layout designs or plans (topographies) of integrated circuits used in computer-generated equipment. A circuit layout is a two-dimensional representation of the three-dimensional location of electronic components in an integrated circuit. Circuit layout rights automatically protect original layout designs for integrated circuits and computer chips. While these rights are based on copyright law principles, they are a separate and unique form of protection.
  9. Confidential information, trade secrets and know-how – trade secrets and know-how are subsets of the broader concept of confidential information, which is any type of information or knowledge that is used by a business that is not generally known to the public. These rights can be protected by both common law and contract.

United States Small Flag United States

(a) Inventions

  • Patents

Patents are granted to any new and useful machine, process, or composition of matter, or any new and useful improvement thereof. A patent is issued by the US Patent and Trademark Office (USPTO). A patent grants the owner the right to exclude others from practicing the claimed invention (i.e., making, using, offering to sell, selling, or importing a patented invention in the U.S.). There are three types of patents: utility, design, and plant.

Laws of nature and abstract ideas are generally not patentable, as well as non-functional descriptive materials like books or music.

  • Trade Secrets

Trade secret protection is available for information that derives economic value from not being generally know or readily ascertainable to third parties who would economically benefit from knowing the secret information. Trade secret protects, e.g., formulas, patterns, compilations, programs, devices, methods, techniques, or processes. To obtain trade secret protection, the subject matter at issue must be used in business and provide an opportunity to obtain economic advantage over competitors without the information. Furthermore, the trade secret holder must implement measures to maintain secrecy. Trade secret protection is not available if the holder fails to implement such measures, the trade secret becomes released or otherwise generally known, or if the information is independently discovered by another.

(b) Brands

  • Trademarks

Trademark protection is available for a word, phrase, symbol, or design, or any combination of these that identifies and distinguishes the source of the goods from others. Similarly, a service mark identifies and distinguishes the source of services from others.

A trademark owner can obtain protection through registration or use in a particular geographical area (“common law” rights). Registration of a mark with the USPTO provides a nationwide protection while common law rights are limited to the particular geographical area in which the mark is used.

  • Passing Off / Unfair Competition

Passing off occurs when a seller of goods or services misleads the public to think that its product or services are from another party. Reverse passing off occurs when a seller misleads the public to think that another party’s goods or services are its own. The rules regulating passing off and reverse passing off are governed by state, as opposed to federal, law.

  • Collective Marks

Collective marks are essentially trademarks for cooperatives, associations, or collectives (e.g., unions, associations, or other organizations) to indicate their membership. A collective mark applicant must establish a proper basis for filing, either through actual use in commerce or bona fide intent to use the mark in commerce. The applicant must also specify the class of people who can use the mark, describe their relationship to the applicant, and state the nature of the applicant’s control or intended control over the use of the mark.

  • Certification Marks

A certification mark is any word, symbol, device or combination that people other than the applicant can use. Specifically, certification marks are used to certify certain qualities of the users’ products or services, such as the geographic origin, material or mode of manufacture, quality or accuracy, conformity with certain standards or tests of competency. Certification marks do not indicate commercial source or distinguish goods or services of one person from another person but rather indicate that the goods/services of authorized users are certified as to a particular aspect of the goods/services.

To obtain a certification mark, an applicant must establish standards, prove objectivity, exclusivity of use, and non-discrimination.

  • Geographical Indications

Geographical indications identify a good as originating in a territory of a WTO member or a region or locality in that territory where a desirable quality, reputation or characteristic of a good is attributable to the geographic origin.

(c) Other creations, technology, and proprietary interests

  • Copyright

Copyright protects works of authorship fixed in a tangible medium of expression. Copyright includes the right to reproduce and make copies of an original work, prepare derivative works based on the original work, distribute copies to the public by sale or another form of transfer, publicly perform the work, publicly display the work, and perform sound recordings publicly through digital audio transmission. Copyright registration with the US Copyright Office is optional because copyright arises as soon as an author creates an original work of authorship in a fixed medium. But only registered copyrights are enforceable through litigation.

  • Design Rights
    • Design Patent

Design patents protect ornamental features of an article of manufacture. For example, design patents can protect configuration or shape of a manufactured article or its surface ornamentation. Design patents do not protect features that serve structural or utilitarian features.

  • Design Copyright

Graphic designs are copyrightable if they are original works fixed in physical objects, such as paper, signs, articles of clothing or digital media.

  • Semiconductor Topography Rights (Mask Work)

One can register a mask work with the US Copyright Office, including three-dimensional pattern of metallic, insulating, or semiconductor material. Rights granted to a mask work include the right to reproduce the mask work and distribute an integrated circuit made using the mask work.

  • Plant Varieties
    • Plant Patents

Plant patents protect inventions or discoveries and asexually reproduces a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. To be eligible for a plant patent, the subject plant must have been created through breeding or other human efforts. Plant patent matters are governed by the federal law and must also satisfy the general patentability requirements.

Non-patent intellectual property protection is available for new varieties of seeds and tubers through the US Department of Agriculture’s Plant Variety Protection Office (PVPO). The PVPO examines new applications and grant certificates that protect varieties for 20 years (25 years for vines and trees). Certificate owners obtain rights to exclude others from marketing and selling their varieties, manage the use of their varieties by other breeders, and receive legal protections.

  • Database Rights

Databases are eligible for copyright protection as compilations. But, under the Copyright statute, the compilation must consist of pre-existing materials or data that are selected and compiled in a way that constitutes an original work of authorship. The underlying facts themselves are not protected.

Updated: September 12, 2019