Patents, plant variety and biotechnology

Copyright, trademarks, patents, plant variety and biotechnology are all intellectual property rights which intend to protect creations made from the human spirit.

A trademark is a sign that can distinguish the products or services of a particular company from the goods or services from another company.

Basically, each character can be protected as a trademark. This can be a word, an image and also colors or shapes are not excluded, on the condition that the requested mark is distinctive. Signs which merely describe the characteristics of a product often lack distinctiveness. This is one of the difficulties that arise when one wants for example deposit a color as a trade mark.

Once a trademark is registered, nobody else can use the mark anymore without the consent of the holder. Another company is also prohibited to carry a tradename that is alike from the registered trademark, when that name can confuse the public with the registered trademark. For example when the consumer could think that the products of the registered trademark are coming from that company.

If this happens, then this is unlawful, and the trade mark holder can start a procedure before the court because of infringement.

A trademark registration is valid for a period of 10 years but can be renewed indefinitely. A trademark registration may, however, also expire if the owner does not use his brand for more than 5 years, or if the brand's name has become the normal designation of that type of products on the market.

A third form of intellectual property rights is the inventor or patent law . The protection through patent law applies to technical inventions. This can be a process or a result of a process.

Also this protection must, unlike copyright, being asked; after which there will be a thorough technical examination, which includes verifying that the invention is new. Only after that, protection will be allowed.

It will therefore always be an absolute need to pay attention when asking protection and when completing your application file.

Patent protection will only be granted when something is new, involves an inventive step and the invention can be applied in the industry.

The simple discovery of a new property of a material or object cannot constitute patent rights. Once they have obtained the protection the holder of a patent can exclude others from the use of its application. As well as other intellectual property rights patent right is an exclusive right and also a prohibition right.

The exclusive rights of a patent are only valid for a specified period. The protection runs until 20 years after the filing of the patent application. In exceptional cases, a patent more than 20 years may be valid, ie up to 25 years and 6 months via the supplementary protection certificate that is allowed for medicinal and plant protection products.

Finally, there can be referred to a special category, namely the breeder and biotechnology .

This particular regime covers the protection of new varieties and crops.

The breeders right does not differ much from patent protection, and provides an exclusive right to reproduce and sell the material which was used for the discovery of a new variety.

Also here, an application has to be made before protection can be obtained. This can be done nationally but also for the entire European Union. For this you will have to turn to the Community Plant Variety Office.

The application procedure will also set the generic name for the new breed. This name should not create confusion in respect of an existing brand or trade name.

The validity of Belgian breeder's rights is also limited, namely to 30 years for trees, vines and potatoes and for other species 25 years.

It is also important to note that for the maintenance of plant variety rights there is an annual fee to be paid. If the fee is not paid, the protection can expire prematurely.

Our office has a broad knowledge of all the mentioned disciplines and can assist you in all aspects that may have to do with intellectual property rights, such as infringements, contracts to transfer rights or graduates; fake products,…

One of the main procedures, which is worth mentioning, is the procedure relating to the seizure for counterfeiting.

It is one thing for the holder of intellectual property rights to suspect a particular person or company has unlawfully infringed those rights and are guilty of counterfeiting, but it is quite another to prove that it is so.

The procedure for seizure for counterfeiting helps the holder of intellectual property rights.

This procedure, prompted by unilateral application, will allow to invade with a suspected counterfeiter. An appointed expert will make findings and describe what he sees and possibly one can ask the sealing of the counterfeiting company so that the suspected counterfeiter cannot continue his unlawful actions.

Based on the description of the expert there is a possibility to ask later for the court a compensation for the damage suffered because of the duplication.

Again, the office has the necessary knowledge to assist you in this.