Intellectual Property Protection and Disputes

What is intellectual property (IP) and what are IP rights?

IP refers to creations of the mind and includes inventive products or processes, designs, distinctive signs, and creative works. Among other scenarios, IP may be generated by investments in research and development, or by activities aimed at differentiating products by improving product quality, reducing production costs, and/or delivering greater value to customers. IP rights are generally private rights granted by governments to individuals, businesses, or associations to exclude others from using a protected work without the owner’s permission for a limited period of time, subject to exceptions, limitations, and exclusions. IP rights are granted and enforced at the domestic level and valid only in the jurisdiction in which they have been registered or otherwise acquired. See the World Trade Organization’s (WTO) Guide to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) for an introduction to the organization’s intellectual property rules, as well as the World Intellectual Property Organization (WIPO) and the International Trade Centre’s (ITC) guidebook on Secrets of Intellectual Property, A guide for small and medium-sized exporters for more information.    

What are the different types of IP rights? 

IP assets can be grouped into two main categories:

• Copyright and related rights: Copyright refers to the rights of authors in their literary and artistic works, including books, music, films, computer programs, and advertisements. Related rights include the rights of performers over their performances, producers over their “fixations” (recordings) of performances, and broadcasting organizations over their broadcasts. Copyright and related rights seek to encourage and reward creative work. See WIPO’s Understanding Copyright and Related Rights for more information.
• Industrial property: Industrial property can be sub-divided into two fields: 
  1. Distinctive signs and geographical indications, which inform consumers, prevent consumer deception, and help to ensure fair competition among producers. Within this field, there are further sub-categories of trademarks and geographical indications.
     1. Trademarks: These are any sign or combination of signs, including words, letters, numerals, figurative elements, and colour combinations, capable of distinguishing the goods and services of one undertaking from another. These signs or sign combinations be protected as a trademark.
     2. Geographical indications (GIs): A GI is a sign that identifies a good as originating in a place where a given quality, reputation, or other characteristic is essentially attributable to its origin. Some examples are well-known names of food products from specific locations, including coffee, cheese, wine, and spirits.
  2. Patents, industrial designs, and trade secrets, among other types of IP, which aim to stimulate innovation and enable the transfer and dissemination of technology and associated know-how. See WIPO’s Understanding Industrial Property for more information. Within this field, there are several sub-categories.
     1. Patents: Patents protect inventions or new solutions to a technical problem in the form of a product or process. Various technologies found in smartphones, medical devices, pharmaceuticals, and self-driving cars are patented in certain jurisdictions.
     2. Industrial designs:  New and independently created ornamental or non-functional aspects of an article, such as its shape, patterns, lines, or colours, may be protected as an industrial design. Businesses create industrial designs to customize products, develop new market segments, and strengthen brands. Household products, textiles, toys, and cars often incorporate industrial designs. 
     3. Trade secrets: Information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret may be legally protected as a trade secret. Also known as “undisclosed information,” manufacturing processes, algorithms, customer lists, and formulas for producing products may constitute trade secrets.

Why does IP matter for MSMEs to trade? 

Domestic IP laws and regulations have implications for product development, design, and delivery; marketing; exporting; licensing and franchising; and pricing. They can also influence businesses’ ability to raise financial resources and attract foreign investors and partners. Identifying the various types of IP that businesses develop, which IP rights to protect and enforce, and in which jurisdictions, are important steps for international traders. Researching which IP rights are already protected for other businesses in the fields where a company conducts its activities in a target market is also critical to avoid infringement.  As IP rights are protected and enforced at the domestic level, exporting goods and services often entails navigating through IP laws and procedures applicable in each target market to assess whether export licenses are needed and which trademarks are appropriate for the markets considered. For more information on why IP rights matter for exporters, see this WIPO training of trainers presentation. 

What issues can emerge for MSMEs in dealing with IP frameworks?

MSMEs are not always aware of the benefits of IP and may also lack the resources to effectively protect what IP they have registered. Additionally, MSMEs may unknowingly infringe on another company’s or individual’s IP rights and be taken to task, especially when they enter unfamiliar jurisdictions. The variations in IP frameworks between markets contribute to the IP challenges faced by smaller firms. There are a number of initiatives that pursue harmonization and integration of these frameworks, especially at the regional level.

Where can policymakers access resources on policy frameworks and guidelines? 

The World Intellectual Property Organization offers a number of useful tools, including:

• WIPO Methodology and Tools for the Development of National IP Strategies: WIPO helps countries in formulating IP strategies with linkages to national development goals through research, audits, and national consultation processes. Visit the WIPO website.
• WIPO Policy and Legislative Assistance: WIPO provides policy and legislative advice in the areas of copyright, patents, trademarks, industrial designs, geographical indications, genetic resources, traditional knowledge and traditional cultural expressions, and building respect for IP. Visit the WIPO website.
• WIPO IP Office Business Solutions: WIPO offers business solutions to IP offices in national and regional institutions that play a role in enabling countries to participate effectively in the global IP system. Visit the WIPO website.

Where can policymakers access best practices and national examples?

• Guidebook for SMEs’ IP-Business Cycle: The Asia-Pacific Economic Cooperation (APEC) forum compiled a list of policies and models that public institutions in Asia and the Pacific can use to formulate IP policies and programs with a small business focus. Visit the APEC website.
• OECD SME Policy Index (Latin America and the Caribbean): The Organisation for Economic Co-operation and Development (OECD) has developed a SME Policy Index that assesses measures related to small business policy design, including IP-related matters. The SME Policy Index has been applied to Chile, Colombia, Mexico, and Peru and throughout the Latin America and the Caribbean region. Visit the OECD website.