Introduction

The concept and regulations of the Industrial Property are constantly evolving. With the Startup phenomenon and the constant increase of new ideas, apps and high innovation softwares, the protection of Industrial Property has become a high-value asset for their development .

Proper Industrial Property protection is paramount to promote the rights of the creators-owners, sharing knowledge and avoiding copycats and the competition to wrongfully appropriate of ideas and work. Taking this into account, is that the most frequent clause of Intellectual Property aims to establish the ownership of the Startup with regards to the work done for the company and, it also regulates “inventions in service”, whose effect is to put the property in the company that is paying for the creator’s services or the workers actual work.

To be entitled to the rights that this provides and to legally protect the work of a Startup, it is important to understand the different aspects and mechanisms of the industrial property system.

First of all, and to avoid confusion, we should mention that Industrial Property, next to Author Rights, are two separate branches of Intellectual Property. When we use the term “Intellectual Property” we are referring to all those rights that arise from the creative and intellectual activity of the human mind, be it on the scientific area, literary, artistic and industrial. Industrial property essentially involves Patents (exclusive rights over an invention), Trademarks (distinctive signs of products and/or services), Industrial Designs (exterior aspects and features of a particular product) and Geographical Indications (that determine the origin of a product)

Clearing the definitions, we now make way to the normative background. Legal texts in Chile as well as internationally, have generated an Industrial Property protection system that is both practical and safe.

At an international level, The Paris Convention for the Protection of Industrial Property and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), are the two core tools concerning intellectual property. The Intellectual Property World Organisation (IPWO) contributes to its protection, creating a uniform legal frame, offering useful registry and information services.

In Chile, Intellectual Property is divided into two categories, Intellectual Property as such, and Industrial Property. These are constitutionally protected (art. 19 Nº 25), in the Civil Code (art. 584), and also Law Nº17.336 of Intellectual Property and its subsequent amendments.

Industrial Property is protected by the aforementioned constitutional and Civil Code norm, and also by Law Nº 19.039, which in addition creates and regulates the National Institute of Intellectual Property (INAPI). Industrial Property rights involve, Trademarks, Patents, Utility Models, Drawings and Industrial Designs, Schematics Layouts or Integrated Circuit Topographies, Geographical Indications and Origin Denominations.

Even if there is no legal obligation to register Industrial Property rights at INAPI, it still is  a necessary step to be entitled to an exclusive and excluding right, subject to temporal and territorial limitations, and also to carry out associated legal acts, such as trading, licences and transmissions.

There is no doubt that for a Startup to develop a strong legal frame and register its own creations involves a series of benefits and safeties before eventual third party actions, which strengthen the business and allow to carry out a project without that many headaches.

 

To be continued…

Giorgia Vulcano, Lawyer.

Picture: Lachlan Donald (CC0)