PROTECTION OF INTELLECTUAL PROPERTY
What is Intellectual Property?
Intellectual Property (or 'IP') is the creativity of a company. Every company has IP even if it is only the company name under which they trade. Intellectual Property Rights (IPR) are the rights a person or company are given by the law to benefit financially from their creativity and to have that rights protected.
IP is an asset, and should be looked after and properly managed. Companies who fail to secure ownership or maintain their IP will be unable to enforce their IPR.
Protection may include registering a patent, trademarks or design in all the relevant markets ensuring any business agreements drawn up have adequate IP protection provision; drafting employment contracts to ensure the company owns the IP in the works produced by its employees.
Trade marks represent the reputation or goodwill of the company under their brand(s), they ensure repeat business. Under UAE law, some trade mark rights arise through use, however it is recommended that any trademarks should be registered with the UAE trade mark office to ensure full protection.
Registration typically takes 8-10 months if there is no objection. Registration is valid for 10 years from date of application and can be renewed indefinitely in 10-year periods. Once your trade mark is registered you have a certificate to prove you own the right. This can then be used to stop other firms using your TM and/or as a revenue stream through licensing agreements.
A trade mark cannot be registered if it:
- is identical or confusingly similar to previously registered marks
- is a "famous" foreign mark
- lacks distinctiveness
- uses geographical names
- conflicts with the moral and social fabric of the UAE (e.g. it is not possible to protect brands for alcoholic products).
The UAE Copyright Law sets out the types of works covered by copyrights which include: literary works, computer software, databases, speeches, dramatic works, music, audio-visual works, plans, art, photographs, applied arts, maps and derivative works. Copyright arises automatically at the time a work is created (e.g. when the photo is taken or the software is written).
It is not necessary to register your copyright at the UAE Copyright Office to have protection however many people choose to do so to prove ownership. Protection is typically for the duration of the author's life plus 25 years or in the case on companies 50 years from the date of publication.
You can stop someone using your copyright ONLY if you can prove they copied you. e.g.: if they independently come up with the same story in a book it is unlikely that you will be able to stop them. Unfortunately the UAE copyright Law favours the employee or contractor and which is a factor overlooked by most companies in UAE.
Very little copyright used by companies will belong to them. This can be corrected by contract but often this is realised too late.
Patents protect inventions such as the steam engine or 'cats’ eyes' on the road. In order to be patentable an invention must be new, involve an inventive step or be capable of industrial application. A patent must be protected before the invention is made public. Patents can be extremely valuable rights (a large proportion of company value in certain industries is made up of the company's patent portfolio).
Patents are obtained in the UAE by applying to the Ministry of Finance and Industry for a grant of patent. Examination of the patent typically takes two years from the date of filing. To date only about 35 patents have been granted.
Chemical inventions covering drugs and pharmaceutical compounds became patentable on 1st January 2005. Protection lasts between 10-20 years depending on the category. Patents can give companies a significant commercial advantage as they can be used to stop competitors using the same process; there is no need to show the competition has copied you.
Designs protect the appearance of products, for example the distinctive shape of a drink or perfume bottle could be protected by a design registration. In the UAE registration is COMPULSORY and you must apply before the design is launched to ensure protection.
Enforcement can take several forms and it recommended that specialist IP legal advice is taken to ensure that the most effective option (legal and costs wise) is taken. The legal framework is in place in the UAE and can be effective as long as the correct procedures are followed.
Punishment typically is a fine and destruction. Prison sentences are rare.
All companies should consider putting in place an IP strategy even if it is only to ensure that their company name is protected as trade mark and that they have correctly registered all the domain names they are likely to require. An IP strategy will likely ensure that the maximum value is extracted from the IP assets of the business in turn boosting the overall value of the firm. Investors in business are increasing concerned whether the IP in a potential target company has been property maintained.