3.2 - Economic achievements

Economic achievements. Contrary to intellectual achievements, the intellectual effort necessary to realise the intangible object concerned is not the object of protection nor a reason for granting protection. The intangible objects of economic achievements are primarily protected because they represent value in trade, either because it usually costs money to produce them or because their use saves money.

Categorisation. Among the economic achievements protected by IP-rights one distinguishes between intangible objects that are protected because they are the product of a production process and those that are protected because they are means of distinction in trade. Productions are granted protection because their production generally requires the investment of labour, skill or money, as is the case when a new plant variety is developed or a sound recording or database is made. Distinctive signs are protected because they can be used in trade to identify the origin or characteristics of a product or service and therefore are a valuable asset for marketing and communication purposes.

3.2.1. Productions

Productions. The protection of these intangible objects, any intellectual effort that has gone into the production thereof is not relevant. Here, the mere fact that these intangible objects were made is the crucial thing. Protection is granted because the production of these goods usually requires efforts and expenses. These rights are about protecting the result of ‘sweat of the brow’.

Neighbouring rights. The protection of ‘sweat of the brow’ is, for instance, the underlying reason for protecting (a) performing artists, (b) producers of phonograms and (c) broadcasting organizations as provided for in the International Convention for the protection of performers, producers of phonograms and broadcasting organizations of Rome (1961) and – together with (d) producers of films – in the Copyright Directive of 2001 that also covers these related rights. The mere realization of a performance, a phonogram, film or broadcast is sufficient for the creation and establishment of the related right of a performer, the producer of a phonogram or film, or of a broadcasting organisation, respectively. The protection given by these rights is limited to the exploitation of that specific, individual performance, phonogram, film or broadcast and does not encompass similar performances, phonograms, films or broadcasts of the same work by other (or the same) performers, producers or broadcasting organisations.

Database rights. The sui generis right that article 7 of Database Directive of 1996 makes it clear that it protects that it protects the economic achievement consisting of a substantial investment in either “the obtaining, verification or presentation of the contents of a database.” The holder of the right cannot prohibit the use of individual data, but can prevent “the extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”

Making an original topography of a semiconductor product. The specific IP-right for original topography of semiconductor products protects a production. In spite of the fact that its terminology is borrowed from copyright by requiring that the topography has to be “the result of its creator's own intellectual effort” the protection is limited to reproduction or exploitation of that topography in semiconductor products. In addition, this protection does not extend not extend to a topography which is the result of ‘reverse engineering’ – “created on the basis of an analysis and evaluation of another topography” – as article 5(3) of the directive provides.

Plant variety rights. The IP-rights for a plant varieties protects the activity of a breeder, which is a “person who bred or discovered and developed” a new  variety (article 1, UPOV). A variety discovered in nature can be protected because what is actually protected is the effort required to develop it into a variety that is distinct, uniform and stable.

Trade secret rights. The right to protection of a trade secret protects the performance consisting in the collection and development of the secret and confidential information. In order to be eligible for protection, it is only relevant that the information is secret. That is the case if it is ‘not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question’ (article 2(1)(a) TsD). The fact that this is a production achievement is also shown by the fact that the person who coincidentally develops the same trade secret independently does not infringe upon that trade secret (article 3(1)(a) TsD).

3.2.2. Distinctive signs

Means to distinguish. IP-rights protect signs that can distinguish in trade. Characteristic of a trade mark, a trade name or a design is that they communicate certain information to the public about a product, service or business. The fact that a trade mark owner endorses a product or service and allows its mark or trade name to be used is relevant information for users and these products or services thus exploit the goodwill associated with these signs.

Trade mark rights. The main category of distinctive signs is trade marks: signs that indicate that a product or a service originates from a certain business. When a sign has distinctive character, it can be protected as a trade mark. That protection may last for as long as it actually will be used as a trade mark.

Trade name rights. While trade marks indicate that a product or service originates from a particular business, trade names are used to identify these businesses.

Design rights. Design rights protect the appearance of a product. The appearance may be two dimensional or three dimensional. Required for protection is that the design has individual character, which is the case if the overall impression of the new design differs from the designs that are already part of the so-called ‘existing design corpus’.