Kea Enos 2013-03-06 00:25:34
IP Goes Global Kea Enos is a partner of Schmeiser, Olsen & Watts LLP and is admitted to practice in Arizona and before the United States Patent and Trademark Office. Schmeiser, Olsen & Watts was recognized in March 2012 by Intellectual Property Today as one of the Top Patent Firms in the United States with 535 patents issued for clients in 2011. Kea provides services in all areas of intellectual property, particularly patents, trademarks and copyrights. For a free initial consultations call 480-655-0073. To learn more about Kea or his firm, go to www.iplawusa.com. The Answer: Global [gloh-buh l]: pertaining to the whole world; worldwide; universal. The Question: What direction has business taken? With the advent of the Internet and the World Wide Web, it has become increasingly easier for businesses to enter the world stage and generate revenue globally. For example, I recently purchased a case for an electronic device on Amazon.com. The cost was $0.01 with shipping charges of $4.99 for a grand total of $5.00. The estimated delivery was set at 17-30 days. Now that is the longest estimated time for shipping that I have experienced, and my first thought was that this was coming from another country. Sure enough, when the package was delivered, it was shipped from China. This solidified in my mind that really any company or individual with a computer and an ISP can go global. This economic globalization carries with it the need to consider intellectual property rights (“IPRs”) on a worldwide level. Because individuals and businesses can sell domestically and internationally with the ease of a few keyboard strokes and mouse clicks, it has also become that easy for people to use identical or similar trademarks of others, sell copies of other’s innovations, or to distribute copies of the literary or artistic works of others. Additionally, with the America Invents Act being fully in force on March 16, 2013, the U.S. patent system is in closer alignment with foreign patent laws by having a first inventor to file system. Recognizing the expanding global economy, ongoing development of policies and procedures that provide for worldwide protection of copyrights, trademarks and patents is a key focus of intellectual property owners and service providers. Copyright Protection The Berne Convention was established in 1886 and has been revised over the years to account for technological advancements. In 1997, the Berne Convention was amended to address two treaties that were adopted dealing with digital media and the Internet. Specifically, this amendment addressed protection for films, music, software and television, particularly as these media formats relate to Internet distribution. The Berne Convention essentially requires a country that is a member of the Berne Convention must extend to citizens of other member countries the same copyright protection and restrictions it extends to its own citizens. Because the U.S. is a member country, if an individual or business has copyrighted works, there is automatic protection in every other member country of the Berne Convention. Protection and enforcement of those copyrights are now enforceable in 166 countries. Trademark Protection The most common way to obtain protection of trademarks internationally is through the Madrid Protocol that is administered by the International Bureau of the World Intellectual Property Organization. The Madrid Protocol is an international procedural mechanism to allow a trademark owner who is in a member country of the Madrid Union to file for trademark protection in several countries by filing one application directly with her own national or regional trademark office. Further, if the trademark owner files within six months of the filing of a domestic trademark, the international trademark will have a priority date of the filing date of the domestic trademark application. There are currently 88 member countries of the Madrid Union. The Madrid Protocol, however, is not the only mechanism for protection that trademark owners should consider. Trademark protection can be accomplished by filing directly into other countries. One of the countries often considered by U.S. companies or individuals is Canada, which is not a member of the Madrid Union. Accordingly, trademark owners would need to file in Canada directly in order to obtain trademark protection there. Perhaps more than any other form of intellectual property, international trademark rights are of greatest importance because they directly tie into the goodwill of a company and infringement of the same, even in foreign markets, can damage that goodwill. Patent Protection Patents require the filing of a patent application within a country or region in order to have a possibility of obtaining an enforceable right in the patent. The Patent Cooperation Treaty (“PCT”) is yet another mechanism that is used in order to file one application in a national or regional patent office and request that the application be extended as pending in all member countries, which is currently 146 countries. A PCT application must be filed within one year of filing a domestic patent application and is afforded a priority date of the filing date of the domestic patent application. Typically, within 30 months of the priority date, the PCT application must enter into the national phase for each country where protection is sought. Patent applicants do not need to file a PCT application in order to obtain foreign rights. They can file directly into these countries within one year of filing a domestic application to obtain a priority date of the filing date of the domestic application. In either instance, patent rights on a global scale need to be considered, particularly for those who seek sales or distribution in foreign countries. Global Strategy Technology has made the world seem much smaller. In the palm of a hand, a person can converse with another over a video conference on opposite ends of the Earth. By the click of a button international commerce transactions occur daily. With businesses increasing international sales, it is time to think about international protection. The current state of the global economy demands the establishment of a plan and procedure for ensuring that a business’s IPRs are properly protected in its global markets.
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