Intellectual Property Law Guide for Singapore Business Owners
What is Intellectual Property?
Intellectual Property (IP) refers to non-physical property created through human creativity or intellect. It includes creative works, inventions and business goodwill but does not include physical things created through physical effort.
For example, the contents of a novel, being the story and characters, would be IP, but the book itself consisting of ink and paper would not be IP.
There are many different types of IP that are protected in different ways, and with different rights.
What is IP Law?
IP law gives IP its legal status as property by defining key aspects such as:
- The owner of the IP;
- Whether the IP needs to be registered;
- The scope of protection of the IP; and
- How owners can enforce their rights against infringers.
Without IP law, there would be no way to prevent people from copying your inventions, creative works, or business identity. This would in turn prevent you from being able to monetise your efforts in creating the IP.
Using the example of the novel above, without IP law, a business would be able to copy the entire contents of the novel (as opposed to physically taking a copy of the book itself) and sell that content to book publishers as if it were their own. This would deprive the author of the ability to sell the contents of the book himself.
Categories of IP law
Different types of IP require different types of protection, resulting in multiple categories of IP. This article covers the more common types of IP in some detail and provides brief summaries of more industry-specific types of IP:
What is a trade mark?
A trade mark is a sign used by a business to indicate that a good or service is being provided by that business. For example, a shoe with the Nike “tick” symbol on it comes from the Nike company or from a business authorised by Nike to use that trade mark.
There are certain requirements for what signs can be registered as a trade mark. For example, the sign:
- Must be capable of graphic representation
- Must be distinctive
- Must not be identical to an existing trade mark in a similar industry, or similar to an existing trade mark in an identical industry, such that the public is likely to be confused.
What does trade mark law protect?
Trade mark law protects the reputation that a business has acquired and that is associated with its trade mark. Without trade mark law, any company would be able to label their apparel “Nike” and use the Nike brand to sell their product without Nike’s permission.
Trade mark law also protects consumers by ensuring that consumers are not misled by businesses using another business’ trade mark without their permission, or using a trade mark that is confusingly similar. This allows trade marks to be a reliable indication of the source of a good or service. Otherwise, it would be impossible for you to tell if a shoe labelled “Nike” is indeed produced by the Nike company.
Does a trade mark need to be registered?
A sign does not need to be registered to be protected under the tort of passing off, which allows business owners to prevent other businesses from misrepresenting that their products are connected to yours. However, proving the tort of passing off is relatively difficult compared to proving trade mark infringement, and there are also other benefits to registering a trade mark.
Registration of a trade mark lasts for 10 years, but can be renewed for further periods of 10 years indefinitely subject to a renewal fee.
How can you monetise your business’ trade marks?
A trade mark brings value to your business in the form of goodwill simply by being used regularly in the course of business. Over time, your business’ goods, services and reputation become associated with that trade mark, and this business goodwill is inherently valuable.
For example, the “Nike” trade mark for sports apparel and attire has a reputation that has been built up by consumer knowledge of Nike products and advertising. These efforts have resulted in the Nike branding being worth over 30 billion USD in 2020.
Another way a business can monetise its trade mark is by licensing it to other businesses for a fee.
What is a copyright and what does it protect?
A copyright protects creative expressions of ideas and allows the owner of the copyright to prevent others from copying their specific expression of the idea. Copyright most commonly exists to protect works such as music, films, designs, photographs, and literature. In addition, it also protects computer code, and specially arranged data.
However, it does not protect works which have no creative aspect, such as an exact copy of an existing work, or an alphabetically sorted database. Although making an exact copy of a work or manually sorting a database alphabetically takes time and effort, there is no creativity involved, so neither effort is protected by copyright.
On the other hand, if amendments had been made when copying an existing work, or if a database were sorted in a special or creative way, the resulting works could be protected by copyright.
How long does copyright protection last?
The duration of copyright protection differs depending on the nature of the copyright work. Generally the copyright protection for literary, dramatic, musical or artistic works lasts for 70 years after the author’s death. For sound recordings, films, photographs and performances, the copyright protections lasts for 70 years from the date of publication.
A detailed list can be found in our article on copyright law.
Does a copyright need to be registered?
Copyright does not need to be registered and automatically subsists in all creative works.
How can you monetise your business’ copyright?
A business can monetise its copyright by selling copies of the work to consumers or other businesses to view, or by using the copyrighted material while carefully controlling who is allowed to copy that material. This is how films, literature and music are traditionally sold.
The same rules apply to digital copies and computer programs, where the business may sell you a digital copy, but prohibit you from making any further copies to prevent you from distributing the software or file.
What is a patent, and what does it protect?
A patent can be granted to protect new inventions, granting its holder a monopoly right over the invention that it covers. This means that for the duration of the patent, no other business can make, use or copy a similar invention without the patent owner’s permission.
The application for the patent must include all relevant aspects of the invention, and this information becomes available to the public when the patent application is published in the patents journal 18 months from the date of filing the application. However, as you are granted a monopoly right, the public is unable to use this information until the patent term expires.
How long does a patent last?
Patents protection lasts for a maximum of 20 years from the date the application was made, subject to renewal fees being paid.
After the term of the patent expires, the public, including competing businesses, can immediately make, use, or copy the invention disclosed in the patent.
Does a patent need to be registered?
A patent owner does not need to register the patent as patent protection is received upon successful application for the patent, and the patent information is then automatically stored in a patent registry.
How can you monetise your business’ patents?
There are at least two ways of monetising your patents.
First, you can make the patented invention to sell or license for a fee. For example, if you own the patent for a new material, you may choose to manufacture and sell the material yourself.
Alternatively, you can sell or license the patent itself, which would allow others to make the invention. Using the above example, this would involve collecting a fee from another business to allow them to manufacture and sell the material.
Confidential information/trade secrets
What is confidential information?
Confidential information or trade secrets refers to information that is kept secret through limiting access to the information as well as non-disclosure clauses in contracts. For example, the Coca-Cola recipe is a highly protected trade secret.
The owner of the confidential information can sue an individual who discloses the confidential information for breaching the confidentiality obligations in the contract, as well as for the tort of breach of confidence.
How long does a trade secret last?
As the trade secret is protected by contract, it can potentially last forever, depending on the duration of confidentiality stated in the contract.
However, if the trade secret is leaked to the public, all protection is effectively lost, since there is no legal obligation on the public not to share the information.
How can you monetise your confidential information?
How confidential information can be commercialised depends on the nature of the confidential information. If the confidential information discloses a product design or manufacturing process, the business may itself use the information to make the product and retain a competitive edge.
Alternatively, similar to patents, the confidential information may be licensed or sold to other businesses. However, this carries some risk as the licensee business may intentionally or unintentionally breach its confidentiality obligations by leaking the information to the public, at which point the protection is lost forever.
What is a registered design?
A registered design can be granted to protect new cosmetic designs in relation to manufactured products. However, it is strictly limited to cosmetic designs, and does not cover purely functional designs, such as a chair having four legs for stability.
Registered designs also do not cover designs required for the product to be compatible with part of a larger product, such as a car headlight having a special design required for it to fit on a specific model of car.
Like patents, the registered design right gives you a monopoly right over using the design or making products with it. This means that only the owner of the registered design can make, import, sell or license products with the registered design.
How long does a registered design last?
A registered design lasts for a maximum of 15 years. It initially lasts for 5 years but can be renewed for an additional 5 years up to two times.
Does a design need to be registered in order to be protected?
A design must be registered to receive protection as a registered design. However, a creative design may be protected by copyright law and thus not need to be registered to receive protection.
The main benefit of registering the design is that doing so will grant you a monopoly right over the design which is a much more powerful right than the right to prevent copying which is provided by copyright.
How can you monetise your registered designs?
Similar to patents, a registered design may be commercialised by making products with the design and selling the products, or by licensing or selling the right to use the design to other businesses.
Other Categories of IP Law
In addition to the core categories of IP, there are additional categories which relate to specific industries.
A plant breeder who discovered or developed a new plant variety may apply for protection of that variety. The protection granted is similar to patent protection – allowing the breeder to prevent others from producing, selling, propagating or importing that plant variety.
Plant variety protection is most relevant to farming and crop companies which may develop new varieties that have higher yields or are more resilient than existing crops.
Geographical indications are generally applied to food and beverages to show that they come from a specific place of origin. The most famous geographical indicator is “Champagne”, referring to wine from the Champagne region of France.
Geographical indications receive a basic level of protection under the international Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. This level of protection prevents businesses from using a geographical indicator only if it misleads consumers as to where the product originates from.
This means, for example, that a chocolate company may label their chocolate “Swiss chocolate” even if the chocolate does not come from Switzerland, as long as consumers are not misled into thinking the chocolate is made in Switzerland.
However, wines and spirits receive enhanced protection under the TRIPS agreement, such that businesses cannot use geographic indicators even if consumers are not misled. For example, a sparkling wine from Australia cannot be labelled “Champagne from Australia” even though the labelling is unlikely to mislead consumers, as it uses the “Champagne” geographical indication.
Does a geographical indication need to be registered in order to be protected?
A geographical indication does not need to be registered to receive basic protection under the TRIPS. However, to grant enhanced protection for a product, a geographical indication must be registered. All products bearing a registered geographical indication receive the same enhanced level of protection that wines and spirits have under the TRIPS agreement.
How long does a geographical indication last?
Registration of a geographical indication lasts for 10 years from the date of registration, but can be renewed for further periods of 10 years indefinitely subject to a renewal fee.
For more information, you may refer to our article on how to register a geographical indication in Singapore.
Protection of layout designs of integrated circuits
This IP protects original three-dimensional layouts, consisting of elements and interconnections, of an integrated circuit. Like copyright, the owner of the layout design can prevent others from copying the layout design. The owner also can prevent the sale, license or import of the protected layout design.
Also similar to copyright, layout designs do not need to be registered in order to enjoy protection.
How Does IP Law Help Businesses Protect and Monetise Their Assets?
Not all businesses will make use of all types of IP. That said, most businesses will need to rely on trade marks so that the public has a reliable indicator of the source of goods or services that they are engaging. To commercialise your business’ IP, it is critical to first understand which categories may be most relevant.
Some examples of how different business types may use IP include:
A restaurant business would rely primarily on its trade mark so customers can identify the restaurant, and the restaurant can build a reputation for the quality of its food and service.
Additionally, it may rely on confidential information in protecting its recipes. While the contents of the recipe is protected by copyright, creating a dish based on the recipe is not infringement of the copyright as the copyright does not protect the result obtained from following the recipe’s instructions.
A pharmaceutical company will rely on patents for protecting new drugs it creates. It may also rely on confidential information to protect drugs that are still in development to prevent competitors from creating a similar drug and possibly receiving patent protection first.
On the other hand, confidential information is not helpful in protecting drugs that have been released on the market. This is becausedrugs can be reverse-engineered by third-parties, which would inevitably destroy the confidentiality of the drug formula.
A design firm would rely on copyright to protect its designs and prevent clients from commissioning a design and then copying it without paying the firm.
The firm’s clients may then rely on registered design protection for the manufacture of products bearing the design.
Finally, a software company is likely to rely on a mix of copyrights, patents, and confidential information to protect its code.
Copyright subsists in the program code, thus a software company can rely on copyright protection to prevent others from copying its code. This extends to downloading its code without authorisation.
Software may also be patented or kept confidential if the code is closed-source, and not intended to be accessible by the public.
Engaging an IP Lawyer for IP Services
IP is a relatively specialised area of law, and there are several stages to commercialising your business’ IP which an IP lawyer will be able to advise you on:
- Identifying your business’ IP;
- Determining which IP may be commercialised or need to be protected;
- Making the appropriate registrations or drafting the appropriate contracts to protect your IP;
- Enforcing your IP rights against infringers.
Each business’ needs may be unique depending on the nature of the business, its ownership, size, reputation and other factors. An experienced IP lawyer will be able to account for these factors in helping your business commercialise its IP.
Finally, if a competitor infringes your IP, the responsibility to sue the infringer and claim damages generally lies on the owner of the IP. It is therefore advisable to engage an IP lawyer to advise on whether to launch an infringement lawsuit and if so, to represent your business in the lawsuit.
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