Intellectual Property Protection in Canada
When starting a new business, one of the first things any entrepreneur should do is protect their business idea. Intellectual Property forms the basis of many new businesses, and many entrepreneurs fail to protect what makes their business unique. From the earliest stages of a business idea, even before incorporation or financing comes in, an entrepreneur is well advised to take the necessary steps to protect what will become the basis of their business, their Intellectual Property.
So, what is Intellectual Property? It is the legal right to ideas, innovations, and creations. There are many ways to implement these legal protections. Patents, Trademarks, Copyright, and Trade Secrets are the main ways in which Intellectual Property rights are protected. Each is applicable to certain situations and no one form of protection will be necessary for all businesses.
In order to receive approval for a patent in Canada, the invention must be novel, useful, and non-obvious to someone skilled in the art. Patents are granted to the first to file, not the first to invent, so timing is very important. Public disclosure of the idea also starts the 12-month clock on the window that you have to file the patent, so early application is key when patent protection is available. Patent approvals can take years, and cost thousands of dollars, but if approved a patent gives you the exclusive right to make, sell, and profit from your invention for 20 years. A worthwhile investment if you have a marketable product that meets the patent requirements.
Trademarks are used to protect a word, symbol, or design that distinguishes the goods or services of an individual or firm from others available to customers. Trademarks protect your brand and any identifying marks associated with it. The value of product recognition cannot be overstated, so protecting what makes your brand unique is very important, especially for consumer goods and services. A registered trademark protects the mark throughout Canada, while an unregistered trademark only protects the mark in areas that the product is being marketed.
A copyright protects the expression of ideas contained in original literary, artistic dramatic and musical works, including computer programs. There is no filing requirement to create the copyright and it protects the work for the life of the creator plus 50 years. The copyright protection gives the creator exclusive right to reproduce the work and any infringement on that is actionable.
4. Trade Secrets
A trade secret is something of value to your firm that is protected through a contractual regime between those who know about the information. Restrictive covenants are used to prevent those who know about the trade secret from disclosing or using the information outside what is contractually permitted. Trade secret protection is a flexible way to protect your Intellectual Property because the contracts used can be drafted in various ways that meet the specific requirements of the situation at hand.
For more information regarding Intellectual Property protections or for issues regarding who owns the Intellectual Property as the ideas arise, please contact the Business Venture Clinic so that we may assist you.
Emerson Frostad is a 3rd year student working for the BLG Business Venture Clinic for the 2017/2018 season.
Blog posts are by students at the Business Venture Clinic. Student bios appear under each post.