Intellectual Property Defined

Home / Intellectual Property Defined

image description

Intellectual property is the corollary of creative genius, invention for short. The early man was the first person to ever invent anything but then intellectual property was not an issue and this because his inventions, though new and original, involving an inventive step, were not industrially applicable and more importantly, he would not market the product of his inventions.

The convention instituting the World Intellectual Property Organisation (WIPO) signed in Stockholm on 14/7/1967 states that intellectual property refers to the rights with respect to:

  • Literary, artistic and scientific works;

  • The interpretations of interpreter-artists and the executions of executor-artists, phonograms and radio transmissions;

  • Inventions in all the domains of human activity;

  • Industrial designs and industrial models;

  • Trademarks, service marks and trade names;

  • Protection against unfair competition; and all other rights regarding intellectual activity in the industrial, scientific, literary and artistic domains.

    Intellectual property is a blanket term covering copyright and industrial property.            

    Literary, artistic and scientific works pertain to copyright. Such works include poems, novels, music, paintings, sculpture and cinematographic works. Copyright has “allied or related rights” such as those regarding the interpretations of interpreter- artists, the execution of executor-artists, phonograms and radio transmissions.

    Inventions, industrial designs and models, trademarks, service marks and trade names pertain to the industrial property branch of intellectual property. The protection against unfair competitions can also be included within the ambit of industrial property for, according to article 1(2) of the Paris convention for the protection of industrial property “the repression of unfair competition” is one of the objects of “the protection of industrial property”. This convention states in clear terms that “all acts of competition contrary to honest usages in industrial and commercial matters is deemed to be an act of unfair competition”. The other objects of industrial property include: patent, utility models, geographical indications and appellations of origin plus the protection of new plant varieties.

    From the foregoing, it is clear that industrial property is not a tangible thing such as factory buildings, machines, raw materials. It is rather an intangible reality, more than precious though.

    At common law, property falls under two grand categories, to wit: real property and personal property. Real property is property attached to real estate. Personal property in broad and general sense includes everything that is the subject of ownership, not coming under the denomination of real estate. It is a right or interest in things movable.

    This includes, but not limited to, bonds, stocks and shares and choses in action generally and intangible property like intellectual property. Indeed the 6th edition of blacks law dictionary divides personalty into (1) corporeal personal property and (2) incorporeal personal property which consists of such rights as personal annuities, stocks, shares, trademarks, patents and copyrights.

    Intellectual property right is limited in space and time. That is, it is limited to the region where it is protected (e.g. the 17 countries of the OAPI region) and to the time during which it is protected (e.g. 10 years for a trademark) except duly renewed.

    Owing to the growth of trade and industry, intellectual property protection has become a major concern of most governments. According to trademark world, issue 110 of September 1998, “Today, more than one million new trademarks are filed every year”. To me this shows the extent to which each business person wants to make his Mark in the world, protect his identity and maintain his brand integrity.

    Cameroon is not missing out in this rising tide of trademark registration. Here, intellectual property matters are handled by the African Intellectual Property Organisation (better known and called by its French acronym OAPI). Its jurisdiction spans 17 central and West African countries mostly of French expression. Cameroon is a special member because it hosts the seat of the organisation.

    Since the late 80s Cameroon has been facing major economic challenges calling for the government to resort to vigorous policies of stabilisation and economic recovery. In the light of this, measures to restructure the industrial sector, privatisation and the liberalisation of trade have been put in hand with the aid of multilateral donors and lenders. For short, it is a question of re-establishing an environment economically attractive for both local and foreign investors. The mechanism of industrial property has contributed in a rather efficient way to this economic dynamics for, by instituting a regime of protection for its different constitutive elements (patents, industrial designs and models, trademarks, service marks, trade names…) and in assuring the repression of unfair competition, it has helped in the consolidation of a legal and regulatory framework liable to entice investors and enhance trade and industry. This accounts for the present growth rate of over 5% the  Cameroon economy is proud of.

    For this we say bravo to OAPI at the regional level and WIPO at the global level.

    One of the hurdles on the way of intellectual property registration is that trademarks can clash. Well, once you are not sure of the originality of the mark of your new product or service, you have to eliminate the chances of your mark being opposed after registration by asking a search to be conducted a priori. At OAPI, this takes only days and the report takes weeks to reach you. Trademark world says compu-mark with customer service departments in Antwerp, London and Paris has the identical screening searches (or ISS searches) which offers a series of tools to help find a name to wit: KISS for a country, RISS for a region and WISS for a global view of the whole world.

    The ISS database allows you to examine almost 14 million trademarks published for the first time since 01/01/76 in some 200 countries worldwide. Everyday, approximately 5000 new trademarks are added to this database.

    The ISS searches will find all identical trademarks and, following application of the compu-mark phonetic rules, paraphonetically identical trademarks. This information, available within 24 hours, will be an invaluable aid in the trademark search strategy.

    Once a trademark search outcome is positive, the mark is registered and it may with the passage of time become famous. Famous trademarks enjoy greater protection and may even be protected in countries where they are not exploited. As soon as a trademark achieves a good degree of recognition and distinctiveness, it transcends the wares and services with which it is normally associated. There is this commercial reality that trademarks are often migrated into new products which may have little similarly to the original product for which the trademark became known.

    The fame of a trademark is not an all or nothing proposition. It will be simplistic to divide trademarks into two classes: the famous and the not famous. Trademarks occupy a continuum, from those which are virtually unknown to those which are instantly recognizable by nearly everyone. The virtually unknown trademarks get known progressively through advertising and other promotional activities such as the sponsorship of sports and cultural events. Guiness Cameroon S.A. sponsors the Mount Cameroon race annually. SITABAC in 1997 sponsored the building of the Douala CRTV-radio station. Tobacco companies all over the world promote their trademarks by like sponsorship.

    But since cigarette smoking complicates health and government is most aware of this, some governments surtax cigarettes. For example a packet of cigarette in the UK cost more than £3.00 and the percentage of the tax making it so expensive goes to sponsor health programmes. Other governments ban Tobacco companies from undertaking certain promotional activities. For example, the government of Canada set a plan to phase out tobacco sponsorship for sports and cultural events. This ban would occur over five years in order to allow event organizers to find alternative funding. At this rate the future trend may be for the trademark for Tobacco companies becoming an endangered species