Introduction
Objective of the Discussion
One of the most renowned marketing gurus Phillip Kotler argues that innovation is the most critical aspect of a successful business nowadays (Burk & Lemley, 2009). Practically all known markets are oversaturated with offers, and the only way to succeed is by inventing new products and services or by changing the business and the marketing methods. Realizing that applying traditional cost-cutting methods of reducing overheads and attracting the new customers is no longer effective, the business community becomes focused on considering innovative approaches as the only effective method of keeping afloat and expanding the market shares (Gowers, 2006).
As a result, for the first in history, the research & developing budgets of the many Fortune 500 companies exceeded their marketing expenses and human resources payrolls. For instance, Samsung, the leading international producer of consumer electronics, is reported to spend from 20% to 35% of all its revenues to the development of new technologies and new products (Miller & Davis, 2000). Moreover, it is innovation, which gave birth to the many new industries. Amazon.com benefited from the proliferation of internet services, while Microsoft, Dell and Apple became the global manufacturers and providers of hardware and software. Because of it, Pfizer became capable of designing medication, which successfully combats the diseases, which were lethal several decades ago.
Not only the large business behemoths benefit from innovation, but small and middle-sized companies as well. Thus, due to the increased data transmission capacities, the real outsourcing boom erupted in the developing countries. India, Pakistan, Russia and Ukraine are gradually, but steadily becoming the major providers of IT services in the world, creating many job opportunities for the local population and becoming competitive on the global economic arena.
However, in today’s market innovation is not the only determinant of successfulness. Establishing a strong, easily recognizable and discernable corporate identity is also important. That is why the businesses are developing unique logos, mottos and other elements of the corporate branding that help them standing out from the crowd of similar product manufacturers and service providers (Schechter & Thomas, 2003).
Yet, while these advantages make doing business today possible, hypothetically, they make the business community highly vulnerable to unfair competition practices. Thus, the most successful technology device can be subject to reverse engineering and imitated by a less dedicated and ethically concernd competitor, while branding elements of a market leader can be easily used by a newly created company to confuse the customers. The most effective, and the only available defenses to such encroachments, is the rapidly evolving systems of national and international intellectual property protections (Xuan & Correa, 2009).
The purpose of this research is to provide a critical review of the intellectual property defense mechanisms and to conclude whether these solutions are effective in the light of today’s business realities.
Scope of Discussion
This research revolves around several axis. Firstly, it analyzes the system of national protection system in the United Kingdom demonstrating how the country structured its intellectual property recognition and protection institutions and discusses their effectiveness.
The second part of this work aims at analyzing the concept of copyright, outlining its main components and discussing why it is important.
The third part of the research discusses the idea of a trademark, providing a comprehensive conceptual definition, outlining its theoretical boundaries and demonstrating how it is used on a practical level.
Finally, this work speaks about the system of international protection of intellectual property. In particular, it discusses the role of WIPO, international intellectual property legislation and other instruments in providing harmonious and equal treatment of businesses, registered in the different countries.
Methods of the Discussion
This research uses qualitative methodology, mainly focusing on the analysis of secondary academic literature. In particular, it analyzes relevant insights taken from the books, peer-reviewed academic journals, opinions of the judges and the lawmakers, and comprehensive commentaries to the primary legislation.
In order to ensure that the research results are unbiased and that they reflect the existing legal realities objectively, this analysis takes into consideration various conflicting opinions, trying to identify and present the most universally accepted academic and business truths.
Contextualization of the Discussion
This analysis is of immense practical and theoretical importance for a future project manager. Nowadays, understanding and applying the methods of IP registration and enforcement is the only viable solution for providing legitimate protective framework of a project (Christie & Gare, 2004). The statistics shows that the number of IP thefts and other violations has skyrocketed since 2014, increasing on 12-15% annually (Neophytou, 2014). However, the law enforcement is keeping pace with the violators, and the new enforcement techniques are regularly discovered. However, in order to resort to them, a project manager should be aware of the IP basics. A skilled IP attorney may often be unaffordable or unavailable, yet, in many business situations a prompt legal action may save a company from the imminent catastrophe (Ravida, 2008). Therefore, understanding the basics of IP protection is an advantageous skill of a project manager, especially in today’s vibrant economy.
Literature Review and Critical Evaluation
This literature review provides comprehensive descriptions of the national systems of protecting the IP, using the United Kingdom legal framework as an example and discusses the concepts of copyright and trademark. The final part of this section provides a discussion of the international intellectual property protection framework and assessment of its effectiveness in the light of the today’s business realities.
The National Protection System
The domestic system of intellectual property laws is enshrined in the various intellectual property registration and protection laws adopted by a respective parliament of a particular country (Isaac, 2008). It is an integral element of the domestic system of property laws. Depending on a particular jurisdiction such laws may be codified as separate legal statutes, as well as they may be incorporated into the major property status, developed through the case law or adopted anyhow otherwise (Francis, 2013; Keenan & Riches, 2007). In general, the generic feature of all national protection systems in the both civil and common law countries is that these systems are based on the legal instruments developed and adopted by the national legislatures. The good examples in this regard are the IP protection laws adopted in the United Kingdom, such as Copyright, Designs and Patents Act 1988, The Trade Marks Act 1994 or the Patents Act 1977.
At the same time, it is important to remember that the national constitutions may recognize that the signed and ratified international laws and conventions automatically become incorporated into the country’s domestic, and thus, may be relied upon in the civil and commercial proceedings. In such cases, these internationally ‘borrowed’ legal instruments supersede the provisions of the national law, in the event the two are in conflict.
The enforcement of laws on a domestic level is exercised by a special agency (Spence, 2007; Burk & Lemley, 2009) . For example, in the UK these functions belong to the competence of Intellectual Property Office (sometimes referred to as the IPO, or colloquially referred to as in the business community as the “Patent House”). This agency is primarily responsible for enforcing the IP law in the country and is an executive body of the Department for Business, Innovation and Skills (Curtis, 2012).
Typically, domestic intellectual property system serves the following purposes:
It sets the criteria for domestic patentability of the inventions. In the majority of cases, these criteria overlap with the internationally accepted patentability standards, yet, in specific legal peculiarities may apply in some countries. Thus, in the countries with socialist orientation, such as Laos, the author of a patent does not have exclusive manufacturing rights.
It prescribes the standards of copyright, trademark, industrial design, trade secrets and other intellectual property elements protection, and stipulates the procedures, which should be followed to recognize an IP right or enforce it. For example, the IPO is vested with responsibility of evaluating patent applications and issuing patents, developing and maintaining the registers of patents, copyrights and trademarks (Drahos).
In general, an aggrieved party applies domestic legal remedies in case any of its rights is violated in the domestic country. While resolving the IP-related disputes, the courts typically apply the relevant provisions of the domestic laws. However, some parts of the international legal instruments may be applied for comparative analysis (Isaac, 2008; Christie & Gare, 2004).
Copyrights
The idea of copyrighting refers to the process of assigning an exclusive right to the creator of a specific literature, artistic, musical or other creative material (Spence, 2007; Isaac, 2008). The rights given to the originator include the right to print, publish, or otherwise reproduce this creation and to receive payment for that. Depending on the jurisdiction, these rights are provided for a certain period. It is important to emphasize that the copyright laws protect only the originally produced expressions. Copyrighting ideas or themes is not possible (Francis, 2013). It is important emphasizing that copyright laws belong the group of the so-called territorial rights, meaning that they are recognized within specific geographical limits (Neophytou, 2014). Despite the fact that the emergence of international copyright laws somewhat standardized them, the copyright laws vary in the different countries, and the fact that a particular copyright was recognized in the United Kingdom does not automatically signify that a similar right would be equally recognized in the United States of America.
One of the most illustrations of a copyright is the protection of songs given to their creators. Specifically, once a song is released, no one else, but a person specifically empowered by the creator is authorized to perform it. Another good example is copyrighted proprietary software. Once acquired, a customer may not redistribute it, unless specifically permitted by the creator (Curtis, 2012).
Trademarks
The concept of trademark refers to some sort of a universally recognizable sign, expression or design, which aims at making the products or services of a particular provider from those, produced by the competitors (Miller & Davis, 2000). The practice shows that the idea of trademark is not only important in law, where it serve to demonstrate that a particular product has been developed by a certain manufacturer, but also in marketing, because it constitutes one of the most important parts of the company corporate identity (Schechter & Thomas, 2003).
Similarly to copyrights, the trademarks may be registered (i.e. those, which have been recognized by a competent national authority) and unregistered (i.e. those, which are automatically granted to a business by the law). Violations of the both types can be legally petitioned, yet, registered trademarks are better protected procedurally, because the burden of proof that a certain symbol belongs to the petitioner is automatically relieved (Keenan & Riches, 2007). At the same time, it is important to emphasize that certain jurisdictions recognize only those trademarks, which have been legally registered.
One of the most popular trademark is the logo and slogan of the Coca Cola Company. No one else, but the Coca Cola Company is authorized to use phrase “taste the feeling” in the marketing campaigns. Similarly, not a single software developer, but Microsoft can insert the symbol “Microsoft” to its products, as well using the tagline “Empowering Us All” in all software development settings is granted to the Microsoft, Inc. only.
International Protection System
The World Intellectual Property Organization administers different systems of international protection of the intellectual property rights (Neophytou, 2014). The key rational behind the very idea of such international protection is universal registration of an object of intellectual property (Keenan & Riches, 2007). Thus, instead of submitting multiple applications and many countries and in many languages, a company with global presence may file a single application in a certain country, and automatically its intellectual property become recognized, protected, and if necessary enforced in all countries (Ravida, 2008). The only condition is that these countries should be the members of WIPO, as well as they should be signatories to the relevant national and international conventions (Xuan & Correa, 2009). Not only this system is advantageous from the purely organizational viewpoint, but also is substantially curtails the expenses associated with the trademark registration.
The System of International Intellectual Property Protection in a Nutshell
International protection of inventions became possible through the so-called International Patenting System, which has been established by the provisions of the Patent Cooperation Treat 1970 (often abridged as PCT). The Patent Cooperation Treaty has been signed and ratified by more than a hundred countries across the world. Thus, receiving patent rights in one member-state automatically provides equal protection mechanisms in the other countries as well (Burk & Lemley, 2009).
International recognition of the trademarks became possible due to conclusion of the Madrid Agreement Concerning the International Registration of Marks, 1891. The modern developments of the trademark area became regulated by the Protocol Relating to the Madrid Agreement, which entered into effect in 1996. Currently, there are 97 member-states to this system (Neophytou, 2014; Gowers, 2006).
As far as international recognition of the industrial designs is concerned, it is mainly the Hague Agreement Concerning the International Deposit of Industrial Designs that regulates it. Together with international systems of trademark and patent recognition and protection, this system is administered by the World Intellectual Property Organization. The Agreement has been signed and ratified by 64 countries (Spence, 2007).
The Problems of International Intellectual Property Protection
In spite of the fact that the very existence of the international mechanisms of intellectual property protection is already a great achievement of the international legal community, several problems of protecting the intellectual property rights on the international scale nevertheless exist.
Thus, under the Madrid system of trademark protection, if a basic application is refused, withdrawn or cancelled within five years of the registration, international protection of the copyright is automatically refused, cancelled or withdrawn as well. As a result, some companies may abuse this reality by submitting applications for the trademarks which have been used by other companies, but who failed to get them registered. In addition to that, despite the fact that the WIPO is actively working on bringing harmony between the different domestic systems, the trademark laws of the different countries are often differently interpreted (Xuan & Correa, 2009). For instance, despite the legal scope of the concept of “trademark” is different in the United Kingdom is dramatically different from the one in Singapore. In addition to that, different countries provide different protection remedies, which may sometimes be inadequate to provide a comprehensive restoration of the violated rights (Francis, 2013; Xuan & Correa, 2009).
Another fundamental challenge of the current system of the international intellectual property protection system is that the number of member states to the different treaties is different (Christie & Gare, 2004). For example, while the United Kingdom is a member state to the Madrid convention, it neither has signed, nor ratified the Hague Agreement. As a result, the companies operating in the United Kingdom may rely on international mechanism of protecting their trademark rights, while the protection of industrial designs should be exercised in accordance with the relevant national legislation only (Spence, 2007).
Overall, it can be concluded that despite the fact that some procedural and substantive legal challenges in the international system of intellectual property protection persist, the WIPO and the international legal community are actively working to reduce the impacts of these downsides. The key aspect in this campaign is to achieve a global uniformity of legal interpretation of the most fundamental intellectual property concepts (Isaac, 2008).
The Role of WIPO
Established as one of the special agencies of the United Nations in 1967, the primary mission of the World Intellectual Property Organization is to “promote the protection of intellectual property throughout the world” and to “encourage all forms of creative activity”. Currently, there are 189 member states to this organization, and it is responsible for administering 26 different international agreements and treaties regulating various intellectual property aspects (World Intellectual Property Organization, 2016).
Apart from administering the agreements and treaties, the organization is involved in a wide range of essential activities, which proliferate the use and protection of intellectual property worldwide. Thus, among its core functions of this organization are the following:
Analyzing, systematizing and codifying the existing intellectual property developments and proposing modifications to the existing regulatory framework.
Assisting the national governments in developing comprehensive domestic policies and making them harmonious with the international intellectual property instruments.
Conducting research activities and issuing commentaries, legal compilations and opinions.
The critical aspect in this regard is that despite the fact that the organization is actively engaged in policymaking and international lawmaking, and recognizing of the intellectual property rights on this level, it does not enforce such laws (Ravida, 2008). Therefore, in order to protect their rights from the unlawful encroachments the holders of intellectual property rights must rely on the domestic remedies, mainly on the special agencies and the judiciary.
Conclusions
Thus, at the national level the legal protection of intellectual property rights is exercised through the comprehensive system of domestic laws and regulations. The registration of the rights is exercised by the special executive agencies, while in order to shield the rights from any unlawful infringements, judicial protection remains the most effective, as well as the only available method of protection. Each country develops its own mechanisms of copyright, trademark and industrial designs protection, yet all they serve the same purpose of providing adequate protective coverage.
At the international level, the system of legal protection is mainly based on the Madrid and Hague Agreements and the Patent Cooperation Agreement. The pivotal point of the all three instruments is that an application filed and approved in one member state, becomes automatically recognized in another. At the same time, while the countries are bound by the same conventions, national understandings and interpretations of the key concepts vary across the different jurisdictions. As a result, a business often face difficulties in enforcing its legitimate IP rights in the different countries. Resolving this problem requires the promotion of unified universal understanding of terminology, in which the WIPI is expected to play the key role.
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