Intellectual property rights in Ontario: What are they and how do they work?
Intellectual property can be a business’ most valuable asset. This category of assets can include a wide range of inventions, software, brands, or a unique process.
Types of protection
Entrepreneurs are wise to take steps to protect these assets. This can include the use of copyright, trademark, and patent protections as appropriate.
A copyright covers the right to produce or publish a certain work such as literary pieces, musical work, and certain computer programs. This right is automatic, but the creator is wise to register the work with the Canadian Intellectual Property Office for proof of ownership. This can serve as valuable evidence in the event the copyright owner needs to enforce their ownership rights.
It is important to note that the laws guiding these protections are constantly evolving. Just recently, Canada extended its copyright laws from 50 years to 70 years after the creator’s death. At that time, the work generally enters the public domain. Those in favour of the change argue that it provides artists with the ability to make a living off their works and puts Canada’s intellectual property laws in line with other countries.
Trademark protections are valuable for unique sounds, designs, words, or other marks used to distinguish a business’ goods and services from the competition. This mark is directly connected to the business’ brand. Registration provides exclusive rights throughout Canada for 10 years. At that time, a business can renew their trademark protections. This is an important distinction from the copyright law, noted above. Since a trademark owner can renew these protections, any trademark related to a copyright could continue after the copyright protections have lapsed. An example is that of Anne of Green Gables. The popular novel lost copyright protections over three decades ago but the author’s heirs have continued to maintain their trademark protections. This provides some continued ownership rights even after the copyright protections have ended.
Patents provide a business with exclusive rights over an invention. A business can use patent protections to exclude competitors from using its invention. This can apply to machines, processes, and specific products. If granted, patent protections generally last 20 years form the date of filing the application.
These are just three of the more common forms of intellectual property protections. Additional options are available depending on the business’ needs and can include plant breeders’ rights, trade secrets, and industrial designs.
Use of intellectual property rights
Business owners are wise to exercise due diligence when it comes to their intellectual property. In addition to keeping their own property safe, they should also monitor the actions of competitors.
If a business believes another has infringed upon its intellectual property rights, it is important to take action to protect the business’ assets. Intellectual property rights are only effective if enforced. The first step is generally negotiation. If negotiations fail, the owner of the intellectual property rights can move forward with litigation. Litigation can provide the following legal remedies:
- Injunction. This court order can force the other party to cease the infringing action. The court may issue a short-term or permanent injunction.
- Damages. The court can also order the infringing party to pay monetary damages to help make up for the loss caused by the infringement.
- Punitive damages. In egregious cases, the court may grant additional monetary damages meant solely to punish the infringing party.
Those who are accused of violating intellectual property rights may argue that they received permission or that the intellectual property right is not valid.
These cases can result in serious financial penalties. In a recent patent infringement case, the Supreme Court of Canada agreed with a lower court that found Nova Chemicals’ owed Dow Inc over C$645 million. The case is significant for two reasons. First, the massive monetary award. This highlights the power of intellectual property protections. Second, the case allowed for springboard profits. These are earnings that the court provides even after a patent expired. The court may award springboard profits if the original patent holder can establish the infringing party established production before the lapse of the patent.
Finding the right intellectual property right tool for your business will depend on the asset at issue. It could include one or a combination of these legal tools working together to offer protection.