1.9 - Obtaining IP protection

1.9.1 By operation of law or by registration

IP-right specific. How the various IP-rights come into existence varies from IP-right to IP-right. Two different systems can be distinguished: (i) the IP-right is obtained by operation of law because the particular intangible object that is entitled to the protection of the specific IP-right has materialized, or (ii) the IP-right only comes into existence upon a governmental grant, which is subject to the fulfilment of certain registration requirements.  A variant of these two extremes is where the IP-right is established by operation of law, but only remains in force provided that certain formal requirements are thereafter fulfilled.

Granting – industrial property. Obtaining IP protection subject to grant by a governmental authority is the general rule within the domain of industrial property: patents, trademarks and industrial designs. The international basis for these rights can be traced back to the Paris Convention for the Protection of Industrial Property of 1883.

Unregistered community designs. An exception to the registration rule has also been created for Community Designs. Article 11 of the Community Design Regulation provides that any design that meets the requirements under Section 1 of that regulation shall be protected as an unregistered Community design for a maximum period of three years as from the date on which the design was first made available to the public within the Community. If the design is registered within one year it may eventually enjoy a maximum protection of 25 years.

Semiconductors. Semiconductor IP-rights are – in terms of their origination – in between industrial property rights and IP-rights that come into existence by operation of law. Although the right comes into existence by the creation of an original topographies of a semiconductor product, the continued existence of that right may be conditional  on an application for registration with a public authority within two years of the first commercial exploitation of that product (article 4, Semiconductor Directive).

Plant varieties. Plant variety rights also have a registration system. Their international basis is in International Convention for the Protection of New Varieties of Plants of 1991. 

 

Operation of law. For other IP-rights than those for inventions, trade marks, designs, plant varieties and semiconductors, registration or obtaining a grant from a governmental agency is generally not a requirement. These IP-rights come into existence simply because – and once – the protectable immaterial object has been created or produced.