Myths and Typical Mistakes in the Field of Intellectual Property - Jakhangir Aripov, an article for Kommersant.Uz website

Myths and Typical Mistakes in the Field of Intellectual Property - Jakhangir Aripov, an article for Kommersant.Uz website

Today I would like to talk about a pressing issue. And it is such not only for me, but also, as I have verified from my practice, for conscientious business people. What I want to discuss is a very important component of business in many companies worldwide. And Uzbekistan is no exception. This is the protection of intellectual property.

The food for thought and the main premise for this article was material that I recently came across in an electronic publication. The material concerning patents and intellectual property contained quite contradictory, ambiguous, and sometimes even dangerous misconceptions. Therefore, I decided to debunk the myths originating from that contradictory article.

Myths. Specialists in this field know very well that all the statements listed below are either outright lies or dangerous misconceptions. In any case, the professionalism of the people making such statements is put under a big question mark. Here is the brief essence of these statements:

1. Copyright is the cheapest and easiest way to protect your rights.

2. Deposition is the best way to secure yourself against copyright claims and sleep peacefully.

3. Whoever registers their right first is the copyright holder without any consequences.

4. Only a national trademark can be registered on the territory of Uzbekistan.

5. If you fail to register an intellectual property object on time, your business is in danger, because an unscrupulous plagiarist can take it away.

Myths meet reality. Now I will try to explain the falsity or bias of these statements as accessibly as possible, providing appropriate examples and evidence.

1) Copyright is the cheapest and easiest way to protect your rights. Firstly, copyright is practically the weakest of all types of intellectual property protection. After all, only the form of expression of a work falls under protection, and not the ideas expressed in it. A very simple example: if a scientific article outlines the essence of an invention, the method of its manufacture, etc., then anyone can assemble, manufacture, offer for sale, etc. this invention without any legal consequences. In this case, in accordance with copyright, what will be prohibited, for example, is reprinting the text of the article itself without the author's permission in another publication, posting the article on the Internet, plagiarizing the authorship of such an article, and others.

Of course, copyright grants exclusive rights, but given technological progress, exercising these rights is becoming increasingly difficult. You can judge this for yourself by how easy it is to find and download almost any latest movie or song from the Internet.

Secondly, despite the cheapness or even the absence of any expenses for acquiring rights and the ease of their acquisition—or rather, thanks to them—copyright is very difficult to prove. Although there are concepts of the presumption of authorship and deposition, they in no way guarantee that whoever declared themselves the author will remain so under all conditions. Criminal punishment for plagiarism, the concept of originality and creative contribution, and evidence of the existence of a work prior to the fact of deposition and its belonging to another person effectively balance the possibility of abusing the presumption of authorship and any copyright registration.

2) Deposition is the best way to secure yourself against copyright claims and sleep peacefully. Relatively recently, a certain company in Uzbekistan began actively introducing our business people and ordinary people to such a phenomenon as the deposition of works in an online depository. What is this and what is it eaten with? Open deposition is permitted by the Law of the Republic of Uzbekistan "On Copyright and Related Rights." That is, any holder of exclusive rights to a work can deposit their work in a depository by concluding a corresponding agreement, and any person upon application to such a depository, again by agreement, can obtain a copy of the deposited work. So, a certain company makes a business out of such deposition, advertising it almost as a panacea for copyright infringement, as a legal fact confirming copyright to a work.

As a specialist working in this field for more than 9 years, I can say that open deposition not only cannot guarantee anything in terms of ensuring copyright, it is not even intended for this in principle. The function of an open depository is not to certify the presence of copyright or confirm authorship of a particular work, but to provide right holders with the opportunity to actually grant an open license for the use of works by third parties under certain conditions. And true evidence of authorship can be, and usually is, completely unrelated to deposition. Unfortunately, very often in order to understand this, one has to end up in court as a copyright infringer.

3) Whoever registers their right first is the copyright holder without any consequences. Another statement actively promoted in the article I mentioned. This statement can be true only in cases where registration or other formalities are a prerequisite for the emergence of intellectual property rights. For example, trademarks, inventions, utility models, and industrial designs require passing the registration and patenting procedure, respectively. Copyright, on the other hand, does not require any registration or other formalities for the emergence of intellectual property rights, although, of course, it is useful to provide yourself with evidence of authorship captured on some material carrier.

This statement will be false, or rather, a dangerous misconception, in all cases of unfair acquisition of intellectual property rights. For example, when an enterprising individual registers a world-famous sugar-free chewing gum brand in their own name regarding toothpastes or toothbrushes, knowingly-knowing that the consumer will buy their product associating it with that very world-famous brand. Unfair competition is a separate category of intellectual property in accordance with Article 10 of the Paris Convention for the Protection of Industrial Property, of which Uzbekistan is also a member. The activities of competition development bodies in Uzbekistan are directed, in particular, against unfair competition. High-profile cases defending rights to world-famous brands Starbucks and Burger King have already become public knowledge in Uzbekistan. Therefore, I want to warn all entrepreneurs who value their reputation and money in advance against any offers from anyone to register a well-known brand for you or your company. In the end, you may not only end up in court, but also suffer serious losses due to being accused of unfair competition.

4) Only a national trademark can be registered on the territory of Uzbekistan. This is the most unfounded of all the statements cited by me contained in the discussed article. An absolutely outrageous lie. True, the motives for it are completely incomprehensible to me. Although Uzbekistan ceased participating in the Madrid Agreement Concerning the International Registration of Marks in 2008, it ratified the Protocol to the said Agreement, in accordance with which the international registration of trademarks is not only possible, but is also actively used by a large number of foreign companies by declaring the extension of trademark protection to Uzbekistan. At the same time, domestic companies can also use the so-called Madrid Protocol to acquire trademark protection in various countries participating in this agreement.

Equally groundless is the phrase from the discussed article: "without registration (of a trademark — Auth. note), business entities do not even have the right to advertise their trademark." Neither the Law of the Republic of Uzbekistan "On Advertising" nor the Law of the Republic of Uzbekistan "On Trademarks, Service Marks and Appellations of Origin" contains or can contain such a rule. A business entity can advertise any designations not prohibited by law under which it carries out its activities or sells goods/services, regardless of whether these designations are registered as a trademark or not [1].

5) If you fail to register an intellectual property object on time, your business is in danger, because an unscrupulous plagiarist can take it away. This is partially true, but again only if you were very careless in providing yourself with evidence, of which a true (and prudent) author/right holder, as a rule, has plenty. In my practice, there was even a case where rights to an invention were transferred by a court decision to a person who proved that the invention was created using his funds, according to his drawings, by providing appropriate employment contracts and other documents.

Of course, it is very important to be the first to acquire rights to a particular industrial property object, but it is even more important to be a bona fide acquirer of such rights at the same time. Free advice to everyone who wants to ensure that no problems with proving good faith arise in the future: document every step in the creation of an intellectual property object. For example, to confirm the date of creation of your work instead of open deposition for a fee, you can simply send yourself a printed document by registered mail or post an electronic version on free virtual drives like Google Drive, DropBox, etc. To provide evidence for the creation of inventions, develop and sign employment contracts with all creators, with all appropriate conditions regarding registration and disposal of the invention, confidentiality, etc., introduce mandatory progress reports of each participant, diaries, and so on. If necessary, all this can very clearly show who is actually the creator and true right holder of a particular intellectual property object, regardless of the intentions of those very "enterprising plagiarists" mentioned in the discussed article.

From all of the above, a very simple conclusion can be drawn—"patent mania" by no means gives the author or other right holder the opportunity to sleep peacefully. I would say that everything is quite the opposite. As soon as you acquire protection for an intellectual property object, a number of questions immediately arise: how to ensure that competitors do not circumvent your patent or trademark, how to maintain a competitive advantage, how to ensure the protection of your intellectual property so that unscrupulous entrepreneurs cannot use it in practice, and how not to get caught yourself if you acquired certain rights to intellectual property objects in bad faith.

Thus, I urge you to think in advance whether the game is worth the candle. If you decide that it is worth it, then entrust your case to professionals who have already earned a good reputation in this field. And stay away from empty promises that registering rights will allow you to sleep peacefully, no matter how tempting it may seem.

Lastly, the most important thing. Do not believe me, do not believe what I wrote here. It is better to check everything yourself, consult with professionals who do not want to profit off you. For example, this could be your lawyer friend, it could be an expert of the Intellectual Property Agency—write an official request there if you really doubt it (keeping in mind that everyone makes mistakes, and IPA specialists are no exception). Finally, simply engage in self-education, read primary sources, official publications, foreign professionals, etc. It is worth it, and the time spent will pay off handsomely in the long run.

Jakhangir Aripov

[1] For a fuller understanding, see the definition of advertising in Art. 4 of the Law of the Republic of Uzbekistan "On Advertising", as well as in Art. 6 of the same law, containing an exhaustive list of what is prohibited in advertising.

Source: http://kommersant.uz/kolumnistika/mify-i-tipichnye-oshibki-v-sfere-intellektualnoy-sobstvennosti