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Goodwill - Your most important asset

Business assets can be defined into two categories. Tangible, like inventory that you can see and touch and intangible such as Trademarks, Copyrights & Patents. This site is dedicated to improving your understanding and appreciation for the complete family of intangible assets, collectively called Intellectual Properties or IP for short.

 
      

Of prime importance is providing business people with enough general information that they will have a feel for what they can do on their own to protect themselves. We expect this site will demonstrate that goodwill, the sum total of your company's intellectual properties, is an invaluable asset that should be under the owners direct control. We will then show you how to exercise control.

All business people, including their legal and financial advisors, must take an interest in making certain that the intangible assets of themselves and their clients is properly protected. Very few business people, less than 8%, have a sufficient enough understanding to take this responsibility.

This site was prepared for two reasons:

  • First - To provide business people with a basic understanding of the vast variety of protection which is available, through registration, of your businesses Goodwill;

  • Second - To list the steps that can be taken to insure that you unregistered goodwill assets are also protected.

We wish to remind you that lawyers attend to registration and protect what is registered while accountants administer assets after registration. Neither professional is charged with the responsibility of monitoring such matters as;

  • "Is a trade-mark being used correctly?"

  • "Does the annual report have the required public notice of ownership?"

  • "Is the instruction manual copyright protected?"

  • "Is the new improved version of the process something that should be patented?"

  • "Has the R&D investment yielded a new product that should be protected?"

These are issues that can greatly effect your balance sheet. They are issues you need to be concerned with. Knowing how to use, understand and protect your Intellectual Properties is a subject that escapes even the largest companies. Recently Bell Canada had nine of it's most important trade-marks struck from registration because they were neither using the marks correctly nor serving public notice of their ownership. We have observed that at least 50% of the registrations of the top 750 companies in Canada may be guilty of the same violation of the rules as was Bell Canada. Once you complete your visit to this site you should be in a position to avoid the dangers that Bell was forced to endure.

We also trust you will come to the conclusion that you should include an IP specialist on your list of professional advisors.

Summary of the types of Intellectual Property

We have devoted complete chapters to each of the main areas below. We suggest you read the summary then, if you have questions, read the complete chapter. In this section we will discuss.


What it Really Means to You

Intellectual Property is a term that doesn't mean a whole lot to the business community. It is often considered to be a legal term. However, it should be considered as a business term. To start with let us place this term in the vernacular. We feel the term intellectual property is best described as being the Goodwill of a business. Businesses grow and survive as a direct result of the ideas, designs, and creativity of the staff that they employ to get their message to the consumer.

To promote and encourage new development and creativity, Governments consider certain kinds of creative endeavor "intellectual property," to be protected through registration. You receive legal recognition for portions of your GOODWILL in much the same way as you can receive title to a piece of land. In addition, the records and documents that record ownership in intellectual property contain valuable information. These records are then made available to the public as a useful tool to both in many ways.

Currently there are seven different kinds of intellectual property that can be the subject of registrations in Canada. In addition there exists an unlimited number of intellectual properties that can not currently be registered, However, they can be protected. For the purposes of this overview we will discuss only the seven register-able items. They include;

Trade Names

The name you use to carry on business. Your first intellectual property.

Copyright

Protection for any literary, artistic, dramatic or musical works of an author. Included as part of this group are the tools used to promote a business. Specifically computer software, promotional literature, advertising copy, instruction manuals, etc.

Trade-marks

Are words, symbols, pictures, or combinations of these, used to distinguish the goods or services of one person from those of another. Specifically they are the words phrases, colours, designs or packaging you use so your customers will know your products by sight.

Patents

The creation of any new kind of technology or the improvement of any existing technology that is often called an invention.

Industrial Designs

Comprise the shape, pattern or ornamentation of an industrially produced object.

Integrated Circuit Topographies

Refers to the three-dimensional configuration of the electronic circuits embodied in integrated circuit products or layout designs.

Plant Breeders' Rights

Apply to certain new plant varieties.

Included as part of the unlimited number of other intellectual properties that are not currently protected through registration are assets such as;

Trade Secrets

Not really something you would want to register as you would be giving public notice of your secret;

Company contracts, Customer Lists or Agreements with Employees

Contracts and agreements are also valuable assets that form part of the base of intellectual property owned by a Business.

All business people, inventors, artists, designers, electronic microchip manufacturers, plant breeders and others have a stake in intellectual property. You should inquire further to find out how laws, practices and information resources can work for you.

The most common intellectual property registration is the Trade Name you use to carry on business. Trade names fall into two classifications. The first are incorporated companies and the second are the names given to businesses that are not incorporated. Everyone, who carries on business, uses one of these two forms of trade name. The proper use is a subject that can of itself be lengthy. Therefore, a special section follows at the conclusions of this introduction devoted to just this asset.


Copyrights

The second Intellectual property that a business person should register often is the text or graphics that give your business its identity. Copyright, the right to copy, means that an owner is the only person who may copy his or her work or permit someone else to do so. Generally, copyright protection is for the life of the author plus 50 years following his death.

What is covered - The kinds of works covered include books, maps, lyrics, musical scores, sculpture, paintings, photographs, films, tapes, computer programs and databases. Slogans, names, and mere titles are not protected by copyright. The owner has the sole right to control any publication, production, reproduction and performance of a work or its translation. Royalty payments may be arranged through performing rights societies, collectives, publishing houses, or by the owners directly through contracts.

Proof of ownership - You obtain copyright automatically when you create an original work. However, your ownership is only recognized once it is registered. Unregistered means you have to prove the date of creation and authorship. Registration, on the other hand, is proof of ownership.

Owner's rights - Modern technology has made it easy to reproduce many kinds of works subject to copyright. Owners rights are infringed by others who copy computer programs, books, music, videos or other products. Penalties for such infringement can be quite costly. For a more in depth and detailed discussion on the subject of Copyrights refer to Chapter Two.


Trade-marks

Trade-mark registration gives you exclusive rights to words, symbols and designs, or combinations of these, that distinguish your wares or services from those of someone else.

Criteria

Your trade-mark must satisfy only two criteria to be registered.

  1. First, it must be USED to distinguish your wares or services from those of someone else.

  2. Second, it must not be too similar to one that is already registered or awaiting registration. Difficulties may also arise if it is too similar to a trade name.

Your trade-mark must satisfy only two criteria to be registered.

  1. First, it must be USED to distinguish your wares or services from those of someone else.

  2. Second, it must not be too similar to one that is already registered or awaiting registration. Difficulties may also arise if it is too similar to a trade name.

Searches - Finding out about trade-marks is important when starting a company or business. It is necessary to make sure no one else has registered, or is awaiting registration of, a trade-mark or is using a trade name similar to the one you want to use.

Registration - Except in the case of precious metals, you do not have to register a trade-mark to be afforded protection. Proper USE of an unregistered trade-mark carries with it rights that can be enforced. Registration, however, gives exclusive rights. For a more in depth and detailed discussion on the subject of Trade-Marks refer to Chapter three.


Patents

Patents offer inventors exclusive rights to their creations and thus provide incentives for research and development. Patent protection applies in the country that issues the patent and, depending on the country, extends for up to 20 years from the date the application is first filed. You can receive a patent for a product or a process which is new, workable and ingenious. In this way, patents serve as a reward for ingenuity.

Because patents do more than keep creative wheels spinning. They are an important means of sharing know-how. Each patent document describes a new aspect of a technology in clear and specific terms and is available for anyone to read.

Eighteen months after a patent application is filed, the document is made public. This is done specifically to promote the sharing of knowledge. Thus, patents are vital resources for businesses, researchers, inventors, academics and others who need to keep up with developments in their fields.

When to apply - In general a patent is given to the inventor who first files an application. It is wise, therefore, to file as soon as possible after completing your invention because someone else may be on the same track. For a more in depth and detailed discussion on the subject of Patents refer to Chapter four.


Industrial Designs

Obtaining a registration for an industrial design gives you exclusive rights for an initial period of five years, renewable for a further five years. The design must be an original shape, pattern or ornamentation applied to a manufactured article. The shape of a table or the decoration on the handle of a spoon are examples of industrial designs. Once registered, industrial designs are available for public inspection.

Keep in mind that it is best to apply for registration before you begin marketing products.

Copyright vs. Industrial design - If your design is an artistic work, it is automatically protected by a copyright, and can register as such. However, if you use the design as a model or pattern to produce 50 or more manufactured articles, it can protect only by an industrial design registration.

For a more in depth and detailed discussion on the subject of Industrial Designs refer to Chapter five.


Integrated Circuit Topographies

Integrated circuit topography refers to the three-dimensional configuration of the electronic circuits used in microchips and semiconductor chips. Registration offers you exclusive rights for 10 years on the original circuit design. Protection extends to the layout design as well as to the finished product.

Applications - To register, you must apply within two years of commercial use of the design. For a more in depth and detailed discussion on the subject of Integrated Circuit Topographies refer to Chapter Six.


Plant Breeders' Rights

The Plant Breeders' Rights Act gives you exclusive rights to new varieties of some plant species. To be protected, the varieties must fulfill certain conditions. They must be:

  1. New, that is, not previously sold.

  2. Different from all other varieties;

  3. Uniform, that is, all plants in the variety are the same; and

  4. Stable, which means each generation is the same.

Publication - Before you receive the rights to a plant variety you must submit a description for publication in the Plant Varieties Journal. The Public has six months to object to a claim.

What is protected - If your claim is granted you are entitled to control the multiplication and sale of the seeds for up to 18 years. But, other people are allowed to breed or save and grow the varieties for their own private use without asking permission.

Protection is available to citizens of countries that are members of the International Union for the Protection of New Varieties of Plants (UPOV).


Names and Protection

Trade Names - A trade name is registered for evidentiary purposes only. The right to the exclusive use of the trade name is not expressed or implied. No jurisdiction recognizes the owner of a trade name as having any monopoly within the jurisdiction or elsewhere. The owners of trade names are required, at the time of registration, to indicate the nature of work associated with the trade name, however, they are not restricted to just the nature of work as registered.

The owner of a trade name only has protection within the confines of a specific geographic area. The owner can therefore prevent someone from using the identical or similar trade name in his trading area. The owner of a trade name can prevent the registration of an unregistered trademark, however, the same owner can not prevent the owner of an unregistered trademark from using the unregistered trademark in some other geographic location.

A trade name is any name by which an individual or a corporation carries on business. Therefore, a corporate name is also known as a trade name with identical protection afforded to it.

Searches of trade names are prepared for the exclusive benefit of the user of the trade name. No jurisdiction requires searches to be filed with requests for registration. It would be foolish, based on the existence of millions of trade names, corporate names and trademarks, for any one to commence to use these lowest priority of names without first conducting a proper search. Amazingly over 25% of new business do.

Corporate Names - No two corporate names, within the same jurisdiction, can be identical, however, similar names of one owner can co-exist. In general no jurisdiction will allow an incorporation without a prior search.

The owner of a Corporate name is granted protection only within the jurisdiction where the corporate name is registered. No protection extends to any other jurisdiction.

Trade Marks - A trade mark is a monopoly. The owner of the mark is granted the right to the exclusive use of his mark, relative to the specific wares or services for which it was registered. No one can offer any competitive product that is likely to be confusing in sight, sound or idea conveyed, to that of the owner of the registered mark. However, identical words are registered for unrelated wares. By way of example McDonald's is registered for restaurant services, alcoholic beverages and tobacco.

For a more in depth and detailed discussion on the subject of trade names refer to Chapter Seven


Questions to Accountants, Lawyers and business valuators?

Chapter Eight is a gift to those advisors who, from time to time, are retained by the business community. We are often asked; "if goodwill is such an important asset why doesn't someone come up with a method of determining its value". Arvic is a firm of trade mark agents and not business valuators. However, we do possess the skills required to establish the guidelines with which goodwill should be measured.

Chapter Eight provides a complete set of questions concerning all aspects of the intellectual property needs and uses of any business person. Business consultants and advisors are asked to review these questions as they will give you a further insight into all aspects of your clients business and serve as the foundation for completion of a valuation of the business.


Forms every business person should have

Have you ever wondered where you can find a non-disclosure or employee agreement. While Chapter Nine contains a collection of some of the agreements you can freely use.

 

  

Arvic Search Services Inc.
Suite 260, 2323 - 32 Ave. N.E. Calgary, Alberta Canada T2E 6Z3
Phone: 403-234-0844 Toll Free: 1-888-227-8421 Fax: 403-294-0944 or Email Us