University Transylvania, Brasov

Faculty of Economic Sciences and Business Administration

Business Administration, 1st year
Subject: Business Law
Student: Stan Iancu Marius
Group:8812

Intellectual
property rights

Coordinating teacher:
Lect. Univ. Dr. Av. Ec. Daj Alexis

TABLE OF CONTENT

Intellectual Property Rights

Introduction.....................................................................................................................- 3 Types of intellectual property rights...............................................................................- 5 A. Patents....................................................................................................................- 5 B. Trade Marks............................................................................................................- 6 C. Copyright................................................................................................................- 6 D. Designs...................................................................................................................- 7 Comparison between main types of intellectual rights...................................................- 8 How are those intellectual property rights respected in our country?...........................- 10 Exploiting Intellectual Property Rights by Licensing...................................................- 12 Economic growth..........................................................................................................- 13 Limitations....................................................................................................................- 14 Conclusion....................................................................................................................- 15 ABBREVIATION.........................................................................................................- 16 BIBLIOGRAPHY.........................................................................................................- 17 -

Introduction

Intellectual property rights are those rights which may be asserted in respect of the
product of the human intellect. They are recognized and protected in some way in all
developed countries and encompass a broad spectrum of different rights. For example,
they safeguard the creators of aesthetic and artistic works from having their creation
distorted and purloined by others, they provide an incentive for invention and innovation
by enabling those who develop new products and processes to reap the financial reward
of their efforts, and they allow those who develop brand names to exploit the reputation
attached to the brand. The importance of intellectual property rights in the modern
commercial world is incontrovertible, but their interaction with Community law is
complex. They raise problems not only for competition law but also for the free
movement of goods and services and the operation of the single market.
This is because:
a) Despite the introduction of some Community-wide rights intellectual property
rights are still typically granted by national laws and enforced on a national basis,
conferring protection within national territories. This inevitably leads to a conflict
with the Community provisions governing the free movement of goods and
services.
b) Intellectual property rights may erect barriers to entry to a market and thus affect
the determination of whether an undertaking is in a dominant position for the
purpose of Article 82. In addition, the use by a dominant undertaking of its
intellectual property rights may constitute an abuse.
c) Transaction involving intellectual property rights may be agreements falling
within Article 81. Holders of intellectual property rights often exploit them by
licensing others to use them. The terms of such license may involve restrictions of
competition, including territorial restrictions which divide the common market.

To conclude all these, intellectual property rights help people who create something
special to earn money through their work and to have their work more respected by
others, because, in general, something that is unique is well-seen by people.
Now, Im going to present you the main types of intellectual property rights, all this to
understand better what intellectual property rights mean and how we can use them to
protect our special goods, in case that we have created or we have obtained something
extraordinary and now we want to keep this thing safe or we want to be sure that nobody
can contest our right of possession on those things.

Types of intellectual property rights

Although many of the legal principles governing intellectual property have evolved over
centuries, it was not until the 19th century that the term intellectual property began to be
used, and not until the late 20th century that it became commonplace in the majority of
the world. The British Statute of Anne 1710 and the Statute of Monopolies 1623 are now
seen as the origins of copyright and patent law respectively.

A. Patents
Patents relate to inventions. The grant of a patent confers on the holder (the patentee),
normally for a maximum period of twenty years, a monopoly over a new and inventive
product or process, and the right to prevent others from making, disposing of, using, or
importing a product which is the subject of the patent or derived from it, or from using
the patented process itself. Patents protect applied technology, not abstract ideas. Patents
are granted in respect of the product or process disclosed in the specification when the
patent is applied for, and on the expiry of the patent anyone else in the world may use the
information contained in the specification.
Patents are legal instruments

intended

to

encourage innovation by

providing

limited monopoly to the inventor (or their assignee) in return for the disclosure of the
invention. The underlying assumption being innovation is encouraged because an
inventor can secure exclusive rights, and therefore a higher probability of financial
rewards in the market place. The publication of the invention is mandatory to get a patent.
Keeping the same invention as a trade secret, rather than disclose by publication, could
prove valuable well beyond the time of any limited patent term, but at the risk of
congenial invention through third party.

B. Trade Marks
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a
combination

of these elements. There is

also a range of non-conventional

trademarks comprising marks which do not fall into these standard categories, such as
those based on color, smell, or sound. Registration of a trade mark gives the holder an
exclusive right to use it as such, although if it is a non-invented word it does not take the
word out of general use, but only prevents its use by others as a trade mark. Other parties
remain free to offer competing goods and services under other marks and brand names. If
renewal procedures are complied with trade mark registration can continue indefinitely.
Trade mark law in the EU was harmonized by the First Trade Mark Directive of 21
December 1988. Marks and brand names which are not registered may also be protected
by other means. In the UK this is by the law on passing-off, and in many other EU
countries by laws on unfair competition.

C. Copyright
Copyright protects works such as literary, musical and artistic works, films, sound
recordings, and broadcasts from unauthorized exploitation by third parties. Unlike a
patent, copyright does not confer a monopoly because it prevents only copying: if a third
party independently comes up with the same melody or words, he will not be liable for
breach of copyright. Copyright does not depend on registration or formal procedures but
arises automatically when the work is set down or recorded in some form.
Copyright is a legal concept, enacted by most governments, giving the creator of an
original work exclusive right to it, usually for a limited time. Generally, it is "the right to
copy", but also gives the copyright holder the right to be credited for the work, to
determine who may adapt the work to other forms, who may perform the work, who may
financially benefit from it, and other, related rights.
Copyright initially was conceived as a way for government to restrict printing; the
contemporary intent of copyright is to promote the creation of new works by giving
authors control of and profit from them. Copyrights have been internationally

standardized, lasting between fifty to a hundred years from the creator's death, or a finite
period for anonymous or corporate creations; some jurisdictions have required formalities
to establishing copyright, most recognize copyright in any completed work, without
formal registration. Generally, copyright is enforced as a civil matter, though some
jurisdictions do apply criminal sanctions.
Most jurisdictions recognize copyright limitations, allowing "fair" exceptions to the
creator's exclusivity of copyright, and giving users certain rights. The development of
digital media and computer network technologies have prompted reinterpretation of these
exceptions, introduced new difficulties in enforcing copyright, and inspired additional
challenges to copyright law's philosophic basis. Simultaneously, businesses with great
economic dependence upon copyright have advocated the extension and expansion of
their copy rights, and sought additional legal and technological enforcement.

D. Designs
Under the Berne Convention countries are free to choose the way in which they protect
industrial designs. In the UK a design which has features which in the finished article is
new and has individual character can be registered. Registration gives the proprietor a
monopoly over its use for a maximum of twenty-five years, in respect of articles for
which it has registered. UK law also recognizes unregistered design rights in respect of
the original design of any aspect of the shape or configuration of an article.
Now, I think that it would be great to present some differences between these intellectual
property rights, in order to understand them better.

Comparison between main types of intellectual rights

While trademark law seeks to protect indications of the commercial source of products or
services, patent law generally seeks to protect new and useful inventions, and registered
designs law generally seeks to protect the look or appearance of a manufactured article.
Trademarks, patents and designs collectively form a subset of intellectual property known
as industrial property because they are often created and used in an industrial or
commercial context.
By comparison, copyright law generally seeks to protect original literary, artistic and
other creative works. Continued active use and re-registration can make a trademark
perpetual, whereas copyright usually lasts for the duration of the author's lifespan plus 70
years for works by individuals, and some limited time after creation for works by bodies
corporate. This can lead to confusion in cases where a work passes into the public
domain but the character in question remains a registered trademark.
Although intellectual property laws such as these are theoretically distinct, more than one
type may afford protection to the same article. For example, the particular design of a
bottle may qualify for copyright protection as a non-utilitarian [sculpture], or for
trademark protection based on its shape, or the 'trade dress' appearance of the bottle as a
whole may be protectable. Titles and character names from books or movies may also be
protectable as trademarks while the works from which they are drawn may qualify for
copyright protection as a whole.
Drawing these distinctions is necessary, but often challenging for the courts and lawyers,
especially in jurisdictions where patents and copyrights pass into the public domain,
depending on the jurisdiction. Unlike patents and copyrights, which in theory are granted
for one-off fixed terms, trademarks remain valid as long as the owner actively uses and
defends them and maintains their registrations with the competent authorities. This often
involves payment of a periodic renewal fee.
As a trademark must be used to maintain rights in relation to that mark, a trademark can
be 'abandoned' or its registration can be cancelled or revoked if the mark is not
continuously used. By comparison, patents and copyrights cannot be 'abandoned' and a

patent holder or copyright owner can generally enforce their rights without taking any
particular action to maintain the patent or copyright. Additionally, patent holders and
copyright owners may not necessarily need to actively police their rights. However, a
failure to bring a timely infringement suit or action against a known infringer may give
the defendant a defense of implied consent or estoppel when suit is finally brought.

How are those intellectual property rights respected in

our country?
In Romania, intellectual property rights are protected mainly by two specialist
institutions: OSIM (State Office for Inventions and Trademarks) and ORDA (Romanian
Copyright Office).
OSIM protects intellectual property rights in the area of industrial property, in
accordance with national legislation and national treaties and conventions.
Its responsibilities include:
a) registering and examining applications in the area of industrial property;
b) issuing protection certificates which grant their holders exclusive rights in Romania;
c) certifying and authorizing patent attorneys.
ORDA protects intellectual property rights in the area of copyrights and related rights.

Commercial disputes relating to intellectual property can be resolved amiably at the

Centre for Mediation of Commercial Disputes within Chamber of Commerce and
Industry of Romania.
Romania has signed many multilateral agreements and treaties relating to the protection
of intellectual property rights.
Romania is a founding member of the World Intellectual Property Organisation (WIPO)
and permanently cooperates with it on the basis of the Programme for cooperation
between the Government of Romania and the WIPO.
To optimize the process of combating counterfeiting and piracy, cooperation
protocols have been concluded between various national institutions. Therefore, OSIM
and ORDA cooperate with the National Customs Authority in order to combat
counterfeiting

and

piracy

in

the

area

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of

intellectual

property

rights.

In addition to OSIM, there are a number of other organisations, mostly private, working
to ensure that intellectual property rights are respected.
The Working Group on Intellectual Property Issues is a public-private partnership
between state institutions and private organisations which all share the common objective
of combating piracy and counterfeiting.
The Romanian National Chamber of Industrial Property Attorneys (CNCPIR) is a
professional, non-governmental organisation whose mission is to regulate the activity of
patent attorneys.

The most famous and recent case in which the somebody from Romania called OSIM
was when the football club FC Politehnica Timisoara wanted to get back the icon, the
trophies and the colors of the club. After the call to OSIM, Timisoara succeeded to
regain its record and they were able to use their colors and icon again.

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Exploiting Intellectual Property Rights by Licensing

You may be interested in starting a new business, expanding an existing business
(extending your territory or the nature of business) or improving the quality of the goods
or services of your SME and thereby its market position. In many situations, licensing of
intellectual property rights is an effective tool for achieving these business goals.
A licensing agreement is a partnership between an intellectual property rights owner
(licensor) and another who is authorized to use such rights (licensee) in exchange for an
agreed payment (fee or royalty). A variety of such licensing agreements are available,
which may be broadly categorized as follows:

Technology License Agreement

Trademark Licensing and Franchising Agreement

Copyright License Agreement

In practice, all or some of these agreements often form part of one single contract since in
transfers of this nature many rights are involved and not simply one type of intellectual
property right. You may also come across licensing agreements in other circumstances,
such as, during a merger or acquisition, or in the course of negotiating a joint venture.
As an intellectual property owner and a licensor, your SME can expand its business to the
frontiers of your partners' business and ensure a steady stream of additional income. As a
licensee, your SME can manufacture, sell, import, export, distribute and market various
goods or services which it may be prevented from doing otherwise. In the international
context, a formal licensing agreement is possible only if the intellectual property right
you wish to license is also protected in the other country or countries of interest to you. If
your intellectual property is not protected in such other country or countries then you
would not only not be able to license it, but also you would have no legal right to put any
restriction on its use by anyone else.

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Economic growth
The WIPO treaty and several related international agreements are premised on the notion
that the protection of intellectual property rights are essential to maintaining economic
growth. The WIPO Intellectual Property Handbook gives two reasons for intellectual
property laws:
One is to give statutory expression to the moral and economic rights of creators in their
creations and the rights of the public in access to those creations.
The second is to promote, as a deliberate act of Government policy, creativity and the
dissemination and application of its results and to encourage fair trading which would
contribute to economic and social development.
The Anti-Counterfeiting Trade Agreement (ACTA) states that "effective enforcement of
intellectual property rights is critical to sustaining economic growth across all industries
and globally".
Economists estimate that two-thirds of the value of large businesses in the U.S. can be
traced to intangible assets. "IP-intensive industries" are estimated to generate 72 percent
more value added (price minus material cost) per employee than "non-IP-intensive
industries".
A joint research project of the WIPO and the United Nations University measuring the
impact of IP systems on six Asian countries found "a positive correlation between the
strengthening of the IP system and subsequent economic growth."
Economists have also shown that IP can be a disincentive to innovation when that
innovation is drastic. IP makes excludable non-rival intellectual products that were
previously non-excludable. This creates economic inefficiency as long as the monopoly is
held. A disincentive to direct resources toward innovation can occur when monopoly
profits are less than the overall welfare improvement to society. This situation can be seen
as a market failure, and an issue of appropriability.

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Limitations
Some critics of intellectual property, such as those in the free culture movement, point
at intellectual monopolies as harming health, preventing progress, and benefiting
concentrated interests to the detriment of the masses, and argue that the public interest is
harmed by ever expansive monopolies in the form of copyright extensions, software
patents and business method patents.
The Committee on Economic, Social and Cultural Rights recognizes that "conflicts may
exist between the respect for and implementation of current intellectual property systems
and other human rights". It argues that intellectual property tends to be governed by
economic goals when it should be viewed primarily as a social product; in order to serve
human well-being, intellectual property systems must respect and conform to human
rights laws.
Some libertarian critics of intellectual property have argued that allowing property rights
in ideas and information creates artificial scarcity and infringes on the right to own
tangible property. Other criticism of intellectual property law concerns the tendency of
the protections of intellectual property to expand, both in duration and in scope. The trend
has been toward longer copyright protection (raising fears that it may some day be
eternal). In addition, the developers and controllers of items of intellectual property have
sought to bring more items under the protection. Because they are systems
of government-granted

monopolies copyrights,

patents,

and

trademarks

are

called intellectual monopoly privileges.

Another limitation of current U.S. Intellectual Property legislation is its focus on
individual and joint works; thus, copyright protection can only be obtained in 'original'
works of authorship. This definition excludes any works that are the result of community
creativity, for example Native American songs and stories; current legislation does not
recognize the uniqueness of indigenous cultural 'property' and its ever-changing nature.
Simply asking native cultures to 'write down' their cultural artifacts on tangible mediums
ignores their necessary orality and enforces a Western bias of the written form as more
authoritative.

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Conclusion
These exclusive rights allow owners of intellectual property to benefit from the property
they have created, providing a financial incentive for the creation of and investment in
intellectual

property,

and,

in

case

of

patents,

pay

associated research

and

development costs.
Intellectual property rights give the holder an exclusionary, and sometimes exclusive,
right to the exploitation of an emanation of the intellect. The nature of the right varies
from one type of intellectual property to another. Intellectual property rights vary in
duration. Some arise only upon registration, while others arise from the act of creation
itself.
I hope this project succeeds to create a new image of what real means intellectual
property rights and this project will help me, as a future economist, to understand better
The Law and the Economy as sciences.

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ABBREVIATION

EU- European Union

EC- European Community
WTO- World Trade Organization
EEC- European Economic Community
UK- United Kingdom
OSIM- State Office for Inventions and Trademarks
ORDA -Romanian Copyright Office
WIPO- Intellectual Property Organisation
CNCPIR- The Romanian National Chamber of Industrial Property Attorneys
ACTA- Anti-Counterfeiting Trade Agreement

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BIBLIOGRAPHY

MARK JANIS, RICHARD KAY and ANTHONY BRADLEY :European

Human Rights Law
ALISON JONES and BRENDA SUFRIN: EC Competition Law
CARMEN ADRIANA GHEORGHE, LAURA MURESAN and CRISTIAN
POTINCU: Dreptul afacerilor

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References
http://en.wikipedia.org/wiki/Copyright
http://www.osim.ro/legis/legislatie/brevet/lg64_91_rep07.htm
http://en.wikipedia.org/wiki/Exclusive_right
http://ec.europa.eu/youreurope/business/competing-through-innovation/protectingintellectual-property/romania/index_en.htm
http://www.legi-internet.ro/lgdraut.htm
http://en.wikipedia.org/wiki/Trademark
http://osim.ro/legis/plegisl.htm
http://www.wipo.int/wipolex/en/profile.jsp?code=WTO
http://en.wikipedia.org/wiki/Intellectual_property

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