The Value of Intellectual Property Rights
The Value of Intellectual Property Rights
Intellectual property law covers a whole range of processes, ideas and inventions. It gives protection not only to the creators, owners and authors against infringement but also members of the public who rely on the safety, reliability and authenticity of the products.
The purpose of this article is not to provide a detailed study of the various Intellectual Property rights but to give a brief outline of the different types of rights, the laws regulating their existence and the protection that they afford.
Cyprus is a signatory to a number of Treaties and follows the latest Intellectual Property laws, bringing the country into line with the acquis communautaire and the international Intellectual Property laws.
Definition of Intellectual Property:
The World Intellectual Property Convention 1968 Article 2 defines Intellectual Property as including, inter alia,
Literary, artistic and scientific works;
Inventions in all fields of Human Endeavour;
Trademarks, services marks and commercial names;
Protection against unfair competition and,
Other rights arising from intellectual activity in the industrial, scientific, literary and artistic fields.
The Courts in Cyprus take a strict line with issues relating to Intellectual Property in order to afford the correct protections from infringements and contraventions.
Trademarks are governed by the Trade Marks Law, Cap 268, as amended by Laws 63/62, 69/71, 206/90 and 176(I) 2000 and by the Regulations of 1951-1992.
A trade mark provides a monopoly right which prevents others from unfairly benefiting from the mark, commercially, financially or in any other manner. The international trade mark classification for goods and services applies, whereby goods and services are categorized into 34 classes and 8 classes respectively. The classification is carried out in accordance with an International Agreement, the Nice Classification (6th ed).
If an applicant wishes to register a mark they need to file an application which contains all the necessary information regarding the mark, including a picture and description of it. The mark, if accepted for registration, is valid for an initial period of 7 years, this may be renewed by further applications for 14 years periodically. A mark can be accepted either absolutely or conditionally by the Registrar. If the conditions that are imposed are not satisfied then the Registrar has the discretion to reject the application outright. If this occurs the applicant may apply for Judicial Review, this can be achieved under Article 146 of the Constitution. The application goes to the Supreme Court of Cyprus where a decision will be made under the courts revisional jurisdiction powers.
If the mark is accepted it is he acceptance then advertised in the Official Gazette of Cyprus, for a two month period. During this period any individual may give notice to the Registrar to oppose the registration. If an objection is made the applicant is given a copy of the notice of opposition; the applicant then needs to provide the Registrar with a copy of any counter statement to the person who opposes the registration. The Registrar will consider the parties arguments and make a decision as to whether the application for registration is to be granted in light of the circumstances.
The second important Intellectual Property right that needs highlighting is that of patents. A new Patents Law has been passed, Law 16 (I) of 1998; however, a main provision which departs from the old cap 266 is that an independent local authority for the registration of patents has been established.
A patent gives the exclusive right to make use of an invention or process for a specific period of time. In Cyprus the life time of a patent is 20 years from the date of its filing. The registration and protection of patents is regulated by the Patents Law 16(I)98 as amended by Laws 21(I)99, 153(I)2000 and 163(I)2002 and by the Patent Regulations of 1999-2000.
S5 of Part III of the law defines the instances where an invention is capable of being patentable. It shall not be patentable unless it is new, involves an inventive step and is capable of industrial application, Law 16 (I) of 1998 s5(1). Sub section (2) of s5 indicates the situations where inventions will not be regarded as inventions for the purposes of s5(1), these being;
Discoveries, mathematical methods and scientific theories,
Aesthetic creations and
Schemes, rules and methods of performance
S5(3) states that a patent shall not be granted for an invention that the exploitation of which would be contrary to public order or morality.
The patent must be novel, under s6 sub section (1) it will be new if it doesn’t form part of the ‘state of the art’. Sub section (2) of s6 states that it will not form part of the state of the art if it has not been made available to the public, whether in Cyprus or elsewhere prior to the application.
Under s7 there must also be an inventive step. To fulfill this requirement it must not have been obvious to an expert skilled in the art. This follows the structure of s3 of the English Patents Act 1977.
As there are many similarities between the Cyprus Law and the English law it follows that decisions of the English Courts will provide persuasive authority in Cyprus.
Copy Right law:
The third main intellectual property right is that of copy right. The law of Copy right in Cyprus is governed by the Copyright and Neighbouring Rights Law 1976 Cap 59 as amended by Laws 63/77, 18 (I) 1993, 54 (I)1999, 12 (I)2001, 128I)2002 and 128(I)2004. The law protects the rights of a qualifying person.
A qualifying person is defined as being;
A person who is a citizen of Cyprus or who habitually resides in Cyprus,
A legal person;
A citizen of another member state of the EU
There is no protection to authors who are not either citizens or habitual residents in Cyprus or who are not first published in Cyprus, however, s18 of the Right of Intellectual Property Law does extend some protection to works of non Cypriots. In order to take advantage of this protection the works should be eligible for protection by virtue of international treaties or conventions which are binding on Cyprus, for example the Universal Copyright Convention.
The protection lasts for a period of 70 years commencing on the death of the author. Copyright laws are aimed at the encouragement of the creation of literary works, artistic works and expressions of national culture.
If the Cyprus Courts find that copyright has been infringed the penalties now include fines and imprisonment, which can be for a period of up to three years. It is also possible that the court may order that offending items be destroyed or delivered up to the true owner. There are also civil remedies which included account of profits made. These tighter penalties appear to be the beginning of the realization and a reflection of the actual importance of the need to protect intellectual property rights.
Finally consideration should be given to the act of passing off; there are three elements to a passing off action, good will, misrepresentation and damage. The principal aim of bringing an action in passing off is to prevent one person benefiting from the goodwill of the business of another.
Good will can be defined as something which distinguishes a business, product or service from others of the same type, it is the attraction that brings customers to prefer the product to other brands in a similar range and it provides a badge of identity for the business, product or service. Goodwill is established through use of the mark in business, the goodwill must generally exist in the country for protection to be afforded to the mark.
In order to bring an action in passing off a misrepresentation must occur. The misrepresentation must lead to confusion in the minds of the public as to the origin of the product.
It must also be proved that there is actual or likely loss of business as a result of the confusion. This can be proved in several ways, loss of profit in an existing market, loss of chance to expand into potential markets or loss of reputation by complaints made or a drop in recorded sales figures would be strong ways to prove the loss and damage suffered.
The accession into the European Union and the growth of international business in and with Cyprus has brought about a greater awareness of the importance of intellectual property to individuals and businesses and the need to protect intellectual property rights. The Laws are now becoming harmonized between the contracting members states, the ideal position would be uniformity in the treatment of intellectual property rights across all of the member states. It is our belief that this goal is and will be attained (able).
The Law as it stands today is not without its flaws, however, as awareness grows it is our opinion that so too will the laws and their application to afford greater protection.
The information contained herein is provided for general guidance and is intended to offer the user general information of interest. The application and impact of the laws in Greece can vary widely based on the specific facts involved. This information is provided on the understanding that the authors and publishers are not herein engaged in rendering professional advice or services. As such, it should not be used as a substitute for consultation with professionals. While we have made every effort to ensure that the information contained herein is correct, we do not accept liability for any errors or omissions.
Author: Miss Rebecca Howarth – Legal Consultant