Intellectual property and the best ways to protect it – certain issues

The term intellectual property (IP) has a broad meaning, and is defined as any products of human intellect, such as inventions, works, designs, and symbols or images, that the law protects against unauthorized use by others.  IP protected by law enables the creators to use products and benefit from them at their discretion and to the extent stipulated by law. There are various acts of law providing for a catalogue of rights attributed to certain IP products. There are many types of intellectual property rights, including for instance copyright, patents, trademarks, and trade secrets.

Copyright – this is a right that the creator holds to their works, and covers works ranging from books, music, paintings, sculpture and films, including computer programs, to databases, advertisements, and logos. Copyright can be protected for instance through Digital Rights Management (DRM). This approach includes the use of certain technologies that limit the copying and the use of works and proprietary software subject to copyright. Any infringement of DRM can lead to claims for compensation. Furthermore, the World Intellectual Property Organization (WIPO) has launched a new online platform, WIPO PROOF, helping creators and also innovators to safeguard their work from the conceptual through the development to the commercialization stage. In Poland, there is no official platform (office) for registration of copyright, however, a certain kind of protection can be achieved through a notarial deed confirming that a work belongs to a certain creator. In addition, copyright can be registered with the US Copyright Office. Any misappropriation of copyright can be subject to legal actions based on civil law and criminal law, seeking damages and an injunction. Works protected by copyright cannot usually be kept confidential due to their nature and circulation in the public sphere. As a work protected by copyright can only originate from an individual, any businesses that make use of copyright of their creators should ensure that any proprietary rights related to copyright are contractually secured. This enables them to challenge and confront any infringements in this respect.

Patent– this is an exclusive right granted for an invention. A patent owner has the right to decide how or whether the invention protected by patent can be used by others. However, the patent owner is required to produce technical information about how the concept works, and other businesses cannot use that information as long as the patent remains in effect (in general for twenty years). In Poland, patents are granted by the Patent Office of the Republic of Poland. Protection of registered patents encompasses remedies such as an injunction as well as lawsuits for handover of benefits gained through unjust enrichment and for compensation. Inventions that are not patented or non-patentable are naturally vulnerable to theft and other criminal activities. Thus to prevent risks associated with stealing or misappropriation of data containing such inventions, undertakings try to stop infringement before it happens, by monitoring data movement, increasing awareness of data breach issues among staff and contractors, and introducing polices on dealing with sensitive data relating in particular to inventions. The most effective way to protect a business against invention misappropriation  is to sign a non-disclosure agreement (NDA) prior to disclosure to third parties. This means that an invention is considered a trade secret. Protection in this way also saves high costs of patent protection.

Trademark – a trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are symbols that represent the brand of a business. They can be visual, such as a logo or seal, but they can also be written expressions or sayings associated with a business. In Poland, trademarks are registered with the Patent Office of Republic of Poland, and Community Trademarks are registered with the Office for Harmonization in the Internal Market (OHIM). Finally, international trademarks are protected under the Madrid Agreement Concerning the International Registration of Trademarks via the WIPO. Once a trademark is registered in Poland, remedies for infringement include injunctions as well as lawsuits for handover of benefits gained through unjust enrichment and for compensation. Meanwhile, by nature a trademark is not confidential and it is used in the public sphere to promote goods and services of an enterprise. To protect a trademark against infringement and counterfeiting, businesses should make sure that their trademark is used regularly to develop a strong trademark, making it difficult for competitors to steal. In other words, the greater visibility given to a trademark the better. In addition, it is also important to make sure that the trademark is not used by others to mislead the public and customers about goods and services.

Trade secrets are intellectual property rights to confidential information of certain value which may be sold or licensed.  The unauthorized acquisition, use or disclosure of such secret information in a manner contrary to honest commercial practices by others is regarded as an unfair practice and a violation of the trade secret protection. Trade secrets can include a large amount of information and know-how of a business that cannot be protected by other IP rights such as patents and trademarks, for instance  early-stage inventions, a manufacturing process, customer lists, prices, bidding procedures, and commercial relationships. The protection of trade secrets is a challenging issue today due to many attempts by hackers to steal trade secrets. These attacks include ransomware attacks, which may be damaging once confidential data is disclosed. In situations of dishonest behavior, the affected entity is entitled to damagesand other remedies. For example, a court order in Poland can prohibit the use or further disclosure of a trade secret by a person who acquires, uses or discloses the trade secret unlawfully. It is also crucial in addressing threats before they become active breaches. Thus every business deploys the right tools and monitors risky data movement to prevent the disclosure of its trade secrets, and introduces data security training for employees to make them aware of the gravity of the protection of business-related sensitive data and counter unlawful data exfiltration.

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