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GAYATRI DASS

AS WE celebrate World Intellectual Property Day today, we are reminded of the power of youths in driving positive change. This year’s theme celebrates “IP and Youth: Innovating for a Better Future.” With an awareness of various forms of intellectual property (IP), young inventors and creators can use their IP rights to achieve their goals, generate income, create jobs, tackle local and global challenges and support community and national development (adapted from WIPO).

What is IP?

IP refers to expressed creations of the mind. IP is broken down into (I) industrial property and (ii) copyright and neighbouring rights/related rights. This article focuses on some major forms of industrial property.

Trade secrets

A trade secret is any information which has been kept secret, has commercial value and retains its commercial value as a result of reasonable steps to keep the information secret. Trade secrets are protected without registration and the unauthorised disclosure of a trade secret may constitute an act of unfair competition under the Protection Against Unfair Competition Act, 1996. Some well-known local examples include the formula for Angostura Bitters and Royal Castle’s spice mix.

Patents

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. The Gatorade formula, as invented by Dr Robert Cade, was a new technical solution to solve the problem of dehydrated athletes who lost fluid and electrolytes while playing football games.
Section 8 of the Patents Act, Chapter 82:76 provides that “a patent may be granted only for an invention in respect of which the following conditions are satisfied, that is, (a) the invention is new; (b) it involves an inventive step; © it is capable of industrial application.”
However, not every invention can be patented. Section 12 of the Patents Act excludes, inter alia, discoveries, scientific theories, mathematical methods, diagnostic, therapeutic and surgical methods for the treatment of humans or animals and the presentation of information from patentability.

Geographical indications

A geographical indication (GI) is defined in the Geographical Indications Act Chapter 82:78 (GI Act) to mean “an indication which identifies a good as originating in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”
GIs are typically used for agricultural products, foodstuff, wine and spirit drinks, handicraft and industrial products. The right to use a protected GI belongs to producers in the geographical area defined, who comply with the specific conditions of production for the product. For example, Champagne producers from the Champagne region in France or the Demerara rum distillers in the Demerara region, Guyana.
Who can apply for a GI? According to S8(2) of the GI Act, the following will have the right to file an application for a GI: “(a) persons carrying on an activity as a producer in the geographical area specified in the [GI] application, with respect to the goods specified in the application, as well as groups of such persons; (b) groups of consumers; and © any competent authority.” The Montserrat Cocoa Farmers’ Co-operative Society Ltd has been able to achieve GI status for the Trinidad Montserrat Hills Cocoa locally.

Industrial designs

An industrial design (ID) constitutes the ornamental or aesthetic aspect of an article and must not be dictated solely or essentially by technical or functional considerations (S3 of the Industrial Designs Act, Chp 82:77). An ID may consist of three-dimensional features, such as the shape of an article such as our local Chubby bottle shape, or two-dimensional features, such as patterns, lines or colour.
To qualify for protection, the ID must be (I) novel or new, that is, not disclosed to the public and (ii) not contrary to public order or morality.
The advantage of such ID protection is that the owner of a registered ID has the right to prevent third parties from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.

Layout-designs of integrated circuits

An integrated circuit is a miniature electrical circuit containing electronic devices, some or all of which are interconnected and embedded in or on a semi-conductor material, eg silicon. Layout-designs (topographies) of integrated circuits are the three-dimensional placement of some or all of the elements and interconnections that make up an integrated circuit.
To qualify for protection, a layout-design must be original. A layout-design will be considered to be original if it is “the result of its creator’s own intellectual effort and is not commonplace among creators of layout-designs and manufacturers of integrated circuits at the time of its creation” (S 4, Layout Designs (Topographies) of Integrated Circuits Act, Chp 82:79).
Further, it must not have been exploited anywhere in the world more than two years before the date the application for protection was made.

Trademarks

A trademark is a sign capable of distinguishing the goods or services of one trader from those of other traders (Part I, Trade Marks Act No 8 of 2015). However, not all signs or logos qualify for trademark protection. A trademark can be refused protection under (I) absolute grounds and (ii) relative grounds of refusal.
Absolute grounds of refusal mean a trademark may be refused for reasons inherent to the trademark itself when the marks: (a) do not satisfy the definition of a trade mark, (b) lack distinctiveness, © designates the kind, quality or purpose of the goods/services, and is (d) customary in the current language or in the bona fide and established practices of the trade.
For example, the word PHONE filed as a trademark for mobile phones would be lacking in distinctiveness, generic and not capable of distinguishing this proposed enterprise from another enterprise. Relative grounds of refusal mean that trademarks may be refused due to the existence of prior trademark rights.
This entails having two identical (or very similar) trademarks for the same or similar types of products which could cause confusion among consumers. For example, if John Smith files a trademark called “Apple-plus” for electronic appliances.
Armed with this information, our youth should be unstoppable in their attempts to innovate for a better future. Innovation does not mean complexity or extravagance. Innovation starts with “an idea whose time has come.”

Gayatri Dass is an attorney and legal counsel
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