An intellectual property lawyer, or IP lawyer, is an expert who files trademark registrations, copyright registrations, and patents. They also manage the infringement of intellectual property rights. They are veterans in the process of navigating all the intellectual property laws, including patent law.
Trademark registration, copyright registration, and patents in Canada originate from the same Canadian government agency, but they are all different protection vehicles for various property types.
Typically, an intellectual property lawyer or IP lawyer will have the expertise to manage these different vehicles. Understanding the fundamental differences between IP and patent law can help you make informed decisions about your intellectual property.
How Does Canada Protect Intellectual Property?
Four principal statues outline copyright, patent, and trademark laws in Canada:
- Patent Act
- Trademarks Act
- Copyright Act
- Industrial Design Act
The Canadian Intellectual Property Office is the administrating body of these laws. They do not oversee infringement thereof. The Canadian Intellectual Property Office issues certifications for copyright, trademark, and patents, but they do not step in if there are violations of the protections.
Infringement or misuse of the protected property falls to the local court to manage. In some cases, there is a provincial and federal overlap. An intellectual property lawyer can help you make sense of these matters.
Enacting the powers of protection requires that you take specific steps as the owner of the intellectual property in question. For example, you have designed something and want to enact protections under the Patent Act. You will first need to file patent applications to register your design and enjoy the protections of that act.
You must choose the proper protection for your intellectual property. IP laws can be confusing and, in some cases, overlap. While patent laws, trademark laws, and copyright laws all fall under the umbrella of intellectual property law, there are some essential differences.
An IP lawyer can help you to decide whether you should be filing a copyright registration or a patent application. The two are similar but not the same.
IP: Intellectual Property
While your design is your intellectual property, it is more likely an innovation or invention. IP laws usually refer to copyright laws. Familiarizing yourself with each of these laws is an excellent place to start unraveling the confusion.
IP Laws and Copyrights
A copyright is a creator’s right to their property and the ability to designate how and when to distribute it, use it, and copy it. These laws protect:
- The written word. A novel, a poem, a play, literature, and written research all are eligible for protection by copyright registration.
- Original music compositions and lyrics fall under copyright laws.
- IP copyright laws protect works of art.
- IP copyright laws also protect speeches.
Copyright is an internationally recognized right. Copyright infringement violates the creator’s rights to copy, distribute, publish, or use copyrighted materials. If you register your copyright in Canada, you enjoy protections in over 147 countries under the Berne Convention agreement.
How Long Does Copyright Protection Last?
Copyright protection is extensive. When granted, it lasts your lifetime plus 50 years from the date of your death.
Patent protections are for:
- Useful inventions.
- Useful designs.
- Inventions that improve a product.
- Designs that protect a current design or enhance it.
Patent applications are scrutinized closely and must meet a specific criterion before an application is approved. The invention or design must:
- Be novel, meaning it must be the “first one ever.” It cannot duplicate an existing patent.
- It must show ingenuity and not be obvious. According to the Canadian Intellectual Property Office, an invention or design must show ingenuity “not obvious to someone of average skill who works in the field of that invention.”
- It must be usable. The invention or improvement of a design must be fully functional and able to operate.
Copyright laws are in place to protect “artistic” work, while patent laws are in place to protect more “functional” forms of intellectual property. Typically, the two are different protections meant for different types of intellectual property.
However, there are cases in which the two will overlap. For example, an inventor creates a jewelry box that plays an original score. The jewelry box design would need patent protection, but the original score would need copyright protection.
How Long Does Patent Protection Last?
Patent protection lasts for a maximum of 20 years. Patents need to be re-filed every 20 years to continue protection, but in some cases, the authorities can refuse patent protection after the initial 20-year period. In those cases, an IP lawyer can step in and file a suit with the courts.
Patent and Trademark
There is also a difference between patent and trademark laws and what they protect. Trademark registration by businesses protects the business brand. Trademarks can protect:
- Logos, specific text associated with a product or brand, and colour schemes
- Images, slogans, and sounds particular to the product
Trademarks protect the image of a business, and the brand, while patents protect against the use of a design or invention by others without permission.
Recourse for Violations of IP Laws
IP litigation to sue someone who has violated your rights to your intellectual materials is the most powerful recourse. It can result in collecting statutory damages on your behalf and ensure that you receive compensation for the misuse of your intellectual property.
Patent litigation is usually the most complex of the three (copyright infringement, trademark infringement, and patent infringement).
Why Is Patent Litigation the Most Complex Court Action?
Typically, in patent cases, there is more monetary value to the case and, therefore, much more at stake from the defendant’s point of view. In instances of copyright infringement, though, a simple cease and desist letter may end the violation.
With patent litigation, the defendant using the patented invention or design has likely invested their own time and money into the design and is ready to fight back. The case may not be as cut and dry as the patent holder believes. Sometimes, minor design changes made by the defendant can mean an unfortunate outcome for the patent holder.
It is crucial in cases of infringement on your IP rights that you have an intellectual property lawyer in Toronto who has had success representing clients in comparable situations and won.
Confused About Which IP Law Applies?
There is a lot of information to weed through to choose which protection is suitable for your intellectual property, and the confusion does not end there. There is an application process for each protection that can include weeks of searching through databases, filing paperwork, and long waits.
Many businesses and individuals choose the easier path to protection by hiring an IP lawyer to manage the process for them. They take advantage of the expertise a lawyer brings to the table. The beauty of having a lawyer from the start during the application phase is that you get legal support should there be a violation of your rights.
Call the intellectual property lawyer who has the experience to help you choose the proper protection tools and represent you in any claims of violations of those protections.