INTELLECTUAL PROPERTY RIGHTS

INTELLECTUAL PROPERTY RIGHTS

Intellectual property, i.e. the protection of intellectual property, has become a very exciting topic in recent decades. The reason for this is that intellectual property law protects the creators of intellectual property and guarantees them fair compensation as the result of their work and inventions. The development of technology and the internet has led to much easier and more widespread "theft" of intellectual property, and because of this, the law had to adapt to the new times in order to prevent these phenomena in an appropriate way. By protecting intellectual property and generating income from it, the holders of this right (eg innovators, painters, writers...) are facilitated to solve their existential issues, and ultimately encourage the creation of new intellectual property.

What is intellectual property?

The simplest, layman's definition says that intellectual property includes all creations of the human mind. In this regard, copyright and intellectual property are often confused, because copyright is only one part of intellectual property rights. However, the law does not protect all creations of the human mind, but only those that meet certain conditions stipulated by law. The branch of law that deals with the protection of the intellectual property is called intellectual property law. The purpose of the existence of these rights is, as we said, to prevent others from copying or unauthorized use of these protected rights without the permission of their holder.

With all that in mind, the most common question is how do I protect my intellectual property rights. The answer to that question depends on which intellectual property is involved. For example, copyright on a book is created by writing the book itself, but if the author wants to secure its right, he can deposit the text in the Intellectual Property Office. In contrast, a patent must be registered to enjoy legal protection.

What falls into intellectual property?

Intellectual property law is a broad field that includes several narrower areas, namely:

1) Copyright and related rights

They represent a group of rights and powers that protect the author in connection with his work. This group usually includes works from the fields of literature, art, or science, and includes the rights of interpreters, producers of phonograms, videograms, broadcasts, and databases, as well as the rights of the first publisher of a free work and publishers of printed editions for a special fee. In the Republic of Serbia, this group of rights is regulated by the Law on Copyright and Related Rights.

2) Industrial property rights

a. Patent – It is an exclusive right that protects an invention that offers a new technical solution to a problem. Patent law allows inventors to protect their inventions from unauthorized use. We covered the patent as a topic in detail in our blog text, which you can read HERE. OVDE.

b. Trademark – It represents the right to protect a sign that serves to distinguish the goods or services of one natural or legal person from the same or similar goods or services of another natural or legal person. A trademark can be a word, a slogan, a logo, or a combination thereof. Like a patent, in many cases, it is necessary to register a trademark in order to enjoy protection against misuse of your brand. If you are the owner of a company that has a recognizable brand of goods or services in your industry, it is advisable to protect the trademark. We covered trademark protection as a topic in our blog post, which you can read HERE. OVDE.

c. Designation of geographical origin – Over time, certain geographical areas have become themselves a symbol of the quality of certain types of goods originating from that area (e.g. cabbage from Futog). It is obvious that every cabbage producer from Futog has an interest in his product being given the epithet "from Futog", as well as in preventing other producers from abusing it.

d. Industrial design – It includes the protection of the aesthetic appearance and shape of the goods. It is not uncommon for consumers to buy certain goods precisely because of their appearance or shape. For this reason, there is imperative to protect the design of goods. You can take legal action against anyone who makes, sells, uses, or imports products that look like a registered industrial design. Sometimes even designs that are coincidentally similar can be challenged by the industrial design holder.

e. Protection of plant varieties – The creation of new plant varieties requires enormous financial resources, work, and intellectual effort. Therefore, it is reasonable to expect that newly created plant varieties must be protected.

3) „Soft“ intellectual property

a. Trade Secret – In the simplest terms, it represents information whose possession gives its owner an advantage over his market competition, that is not being protected by any of the rights listed above. Typical examples would be a business strategy or customer list. It is in the company's interest to protect its business through contracts with its employees by prohibiting the disclosure of business secrets to third parties (NDA), and in case of violation, criminal-legal and civil- legal consequences are assigned by law. Although it does not traditionally fall under intellectual property rights, it can be seen to have certain ties to this field due to its importance.

b. Internet domain names – Like a trade secret, it also does not belong to intellectual property rights, but with the unauthorized use of an Internet domain name, there may be a violation of a trademark or the legitimate interest of another person. In practice, it often happens that third parties register Internet domains that are the same or similar to other people's marks, with the aim of later selling them to the legitimate rights holder with monetary compensation. In the mentioned case, protection is available through court or alternative means before the Dispute Resolution Commission regarding the registration of the national internet domain at the Serbian Chamber of Commerce.

How to protect software?

The main problem with protecting software is that it has always been difficult to classify it in any of the traditional intellectual property categories. Intellectual property on the Internet is a very attractive topic. For example, the software can be viewed as a literal work and protected by copyright, while on the other hand software solves a problem in operation, and such things are traditionally protected by a patent. Due to the large financial revenues that are generated from software in modern times, the software creator naturally wants to protect it in the best possible way. In practice, the software is usually protected in four ways - copyright protection, patent protection, non-disclosure agreement (NDA) protection, and software trademark protection.

At this point, we will highlight only some of the most significant features of each of the four mentioned software protection methods:

А) Copyright protection of the software

In principle, copyright protects the original performance of the software and its presentation, but does not protect the idea itself. This means in practice that your competitor could develop their own version of the software that is similar to yours, without seeing your source code, in which case you would not be protected. However, you are still protected from someone taking your entire code and making the exact same software. This form of software protection is very often used in practice primarily because it is cheap, and because it is simple, and easy to obtain. In addition, depositing software with the Intellectual Property Office as copyright is necessary in order to exercise some tax benefits available to innovative startups.

B) Protecting software with a patent

In the case of obtaining a patent, the protection of your software is at a much higher level compared to the simple protection provided by copyright. Mainly because not only is the production and sale of the same software prohibited, but this protection also extends to similar products. This means in practice that your competitor cannot develop a software similar to yours, regardless of whether that software is built "from scratch". While copyright protection does not give you protection for an idea, as can be seen, a patent protects even your idea and not just the program code. Unfortunately, in Europe, including in Serbia, the prevailing notion in legislation is that patenting software is not possible. Patent Law in Serbia also stipulates that computer programs are not patentable. The only way that computer code can be patented is if the software is a part of a system that it manages and enables. For example, an ID card reader is a device (hardware) that, when connected to a computer, allows an ID card with a chip to be read on the computer. The software that makes the reader work is patentable only as part of that system. Computer code by itself, outside of the system, is not patentable.

V) Protecting software with a Non-Disclosure Agreement (NDA)

A confidentiality agreement is a form of software protection from persons who work on its development as employees or those who in the course of software development in any way come into contact with the code or information about the software itself. Essentially, this contract protects a business secret that, if it were to be known to competitors, could cause damage to your business. It is necessary to highlight the special importance of this contract in the negotiation phase. For example, in order to hire an employee who will work on software development, you have to tell him or her what kind of software it is. However, if you tell him or her such confidential information, and the employee still decides not to do business with you, you have put your business at risk. It is precisely in such cases that it is wise to sign a confidentiality agreement with the potential candidate before giving them any business information. This contract may stipulate a monetary amount (liquidated damages) that the violator will have to pay as a form of compensation in case of violation of the provisions of the contract. A special benefit and an additional reason to use this mechanism are that in case of breach of contract and disclosure of confidential information, it is not necessary to prove that any damage actually occurred. It is enough to prove that the violator has disclosed confidential information, and on that basis, you are entitled to the monetary amount of the liquidated damages prescribed by the contract. In addition, divulging a trade secret is a criminal offense in Serbia.

G) Software protection through trademark


We can safely say that this type of software protection is not common, but it can still serve its purpose. For example, if someone were to try to completely copy the look and functionality of your software, and also use your trademark, end users (buyers) could be misled that it is your software. Of course, this not only causes material damage but consumer confidence in your software can also be shaken. In such situations, if you have a registered trademark that has been taken over, it is possible to effectively protect the trademark as a "first aid" until you take other legal actions against the perpetrator.

The most common intellectual property rights disputes

Disputes about intellectual property that most often appear in court practice in Serbia concern copyright violations, trademarks, and disputes related to software license agreements.

If a third party uses your book or poem and presents it as their own, you can file a lawsuit in court and request a finding that the third party has violated your right, a ban on further violation of the right, exclusion from circulation, confiscation or destruction, or modification without any compensation, of the object which was violated, e.g. a book that you wrote and on which another author is marked. Finally, the author can request compensation for material and non-material damages. The holder of the trademark right and other persons designated in the Law on Trademarks have similar rights.

Are you looking for an intellectual property lawyer in Serbia?

Law office Pekić provides a wide range of services related to the protection of intellectual property rights, including consulting and representation of clients in procedures for the protection of copyrights, trademarks, patents, models, designs, and domain names. Our lawyers particularly emphasize experience in software licensing, as well as procedures for the protection of clients' rights related to software. You can contact us via the e-mail address pekic@attorney.rs, or by sending a message on Facebook messenger or Linkedin.