FAQ - General
May ideas be protected by an intellectual property right?
The answer is NO. Ideas, concepts, may not be protected by any means, not even by copyright. An implementation or an expression of the idea or the concept is required, which additionally shall fulfill the specific requirements of one of the existing means of protection (trademark, patent, design, breeder’s right, copyright, etc.).
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The right of priority was instituted by the Paris Convention which was signed in 1882 and which is currently binding to most of the countries around the world. The right of priority is a mechanism aimed at circumventing the fact that it is in practice impossible to file a patent, a trademark or a design application at the same time in every countries in the world. The consequence of this was that the application filed in the first country would likely destroy novelty in the other countries and render impossible the obtaining of a protection in these other countries. Thus arose the idea of conceding a period to the applicant so as to file the other applications: a priority period of 6 months for the trademarks and designs, and a priority period of 12 months for patents, starting from the first filing date.
This “first filing” is broadly speaking and upon strict conditions, equivalent to a filing in all contracting states of the Paris Convention.
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What is the principle of exhaustion of intellectual rights?
A right is exhausted if its holder cannot anymore exercise it against third parties. The Court of Justice of the European Communities has developed the theory of the Community exhaustion, according to which the proprietor of an intellectual right (trademark, patent, design, copyright, etc.) has exhausted his right if he has placed directly, i.e. himself, or indirectly, i.e. via a third party authorized by him (e.g. a licensee), a product on the market of a member state of the European Union. A consequence for the right holder is that he may not, based on his intellectual right, prevent others from importing or using in a member state (where the right holder has a registered trademark, a granted patent, a registered design, a copyright, etc.) a product holding his trademark or protected by his patent or his design right or a copyright, if that product originates from another member state where it has been put on the market by the right holder or with his consent. This principle is applicable product by product and the consent shall be certain. It contains however some exceptions.
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What is the purpose of the « i-dépôt »?
The “i-dépôt” is a procedure before the Benelux Intellectual Property Office which allows you to obtain a certified date of creation (“date certaine”). Accordingly, you may thus obtain the proof that at a specific date, which is the date of registration of the “i-dépôt” before the Office, you were in possession of an idea, a concept, a technique, a song, a document, a database, a software, etc., anything which may be represented or described on a paper support or on line (directly on the secured website of the OBPI) or stored on a diskette, a microfilm, or a CD-ROM.
Be careful, no intellectual right may be derived from an “i-dépôt”! To obtain such a right, you must fulfill all the formal and substantive requirements stipulated by the applicable law of patent, trademark or design, with the exception of copyright for which no formalities are required. But even in that case, only the judge to whom the case is referred to will determine if your creation may be protected by copyright, that is to say if there is indeed original creation (and not only an abstract idea).
As the content of the “i-dépôt” is kept secret by the OBPI, you may subsequently file a patent application or an application for the protection of a trademark or a design, with no risk that novelty be prejudiced by the “i-dépôt”.
The procedure is the following: either you send your idea directly on line, or you send it by regular mail using an “i-dépôt” envelope (which comprises two compartments in which you will incorporate a document, a CD-ROM or an identical diskette, describing or representing your creation the clearest possible manner). The OBPI records your name and the date of the “i-dépôt” and keeps your “i-dépôt” for a renewable period of five years. In case of on line filing, you receive a confirmation by e-mail upon payment, and you may download your “i-dépôt” certificate right after. In case you use an “i-dépôt” envelope, the latter will be sealed by the OBPI which will give you one of the two compartments back. That will be your duty to keep it secret. The second compartment is kept, without being open, in the archives of the OBPI for a period of five years. At anytime, you may require - only once – the second compartment to produce it as evidence in a court action.
You may find more information on http://www.boip.int/en/ideeen/what.html.
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« Registration fees » : Be careful, frauds are frequent
Besides exceptional circumstances which are mainly related to the State’s Security, every patent, trademark or design application is automatically published tax-free a few weeks or a few months after the filing date, depending on the situation. Some companies take profit of this publication to compile the addresses of the applicants. This is not simply done for pure informative reasons: some companies make a lot of money by sending letters with some official aspect to these addresses proposing registration of these data in some presumably specialized directory against payment of fees.
In most cases, this is a con. Misled by the official aspect of the mail, some applicants do pay fees convinced that they acted on direct request from the European Patent or Trademark Office or from the World Intellectual Property Office. This is not the case at all. The insertion upon payment of their patent, trademark or design details in a directory does not confer any rights or legal advantages.
Besides, it is extremely rare for the official instances to contact directly an applicant so as to double check his/her details.
A few rules to follow so as to avoid falling into that trap:
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