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What does the term “intellectual property” mean?

By, last update on: February 17th, 2021

Creative creations and inventions are not uncommon with considerable effort - both in the form of time and money - connected. It is therefore not surprising that artists, writers, musicians, programmers and inventors find theirs Protect works want. This is made possible by the various areas of law covered by the term "intellectual property" be summarized.

Intellectual property FAQ

Is there a law governing intellectual property?

There is no single law on the subject of “intellectual property” in Germany. Rather, it is an amalgamation of different areas of law. Depending on what type of creation it is, special laws and regulations apply, including the copyright law.

Is there a way to protect intellectual property?

Intellectual property can be protected by a variety of laws. Depending on the respective creation, copyright or a field of law from the field of commercial legal protection apply. In the case of commercial legal protection, it is usually necessary to register intellectual property; in contrast, in the case of copyright law, protection is created automatically.

How can you fight against intellectual property theft?

As a rule, you can also find measures against infringement of your rights in the various legal texts that deal with the various products in the field of "intellectual property". Often reference is made to the right to cease and desist and the payment of damages. If you want to take legal action, it can be useful to get advice from a lawyer.

Can intellectual property be transferred to the employer through a clause in the employment contract?

Indeed, it is possible that intellectual property may be transferred from the employee to the employer under certain circumstances. If an employee develops a patent during working hours, this is a "service invention". The Employee Invention Act grants the employer the right to such an invention. In contrast, the employee receives a corresponding remuneration.

Definition: what is intellectual property?

The different rights referred to the Protection of spiritual creations serve. So the term is very broad.

It is about immaterial goods, which is why the term Intellectual property law Applies. The synonym is also added to this "Intellectual property" Use.

The English term is used internationally and on the Internet "Intellectual property" and the abbreviation "IP".

Intellectual property rights apply to Intellectual property, that is, products that are not tangible and yet are owned by their developers and creators are located. These goods are, for example, pictures, words, melodies, ideas, programs, inventions and brands.

For the term “intellectual property”, a definition that applies in principle does not yet exist. Rather, it varies Scope of intellectual property rights depending on the sources consulted. For this reason, only the most important and as general agreement mentioned Property rightsto be examined more closely.

Which intellectual property rights have to be respected?

As mentioned earlier, the scope may differ from intellectual property law. To the basic similarities count as areas of law above all the copyright and the commercial legal protection. Overlaps can also occur in the Competition law occur.

Overall, the following areas of law can be used as Intellectual property right be valid:

  • Right to your own picture
  • Intellectual Property:
    • Patent law
    • Trademark law
    • Design right
    • Utility model law
    • Plant variety protection law
    • Semiconductor protection law
  • Competition law:
    • Fairness law
    • Trade secrets
    • Performance protection under competition law

Intellectual property can roughly be broken down into literary and artistic property - so the copyright - as well as the industrial property - especially patent and trademark law. The Emergence of legal protection: Because while the commercial legal protection one Registration needs - which is why it is also called Register rights are designated - so that a protection is effective, that arises copyright automatically from Time of creation of the work.

Intellectual property and copyright

Copyright protects intellectual property when it is about personal spiritual creations acts that do the necessary Height of creation to reach. According to the legislature, this is only possible if the work gets through Individuality and creativity excels.

However, copyright only grants protection for intellectual property to works from the fields of Literature, science and art. In § 2 of the Copyright Act (UrhG) the following Work types listed, which are protected by copyright:

  • Works of language such as written works, speeches and computer programs
  • Works of music
  • pantomime works including works of dance art
  • Works of fine arts including works of architecture and applied arts and designs of such works
  • Photographic works including works that are created similar to photographic works
  • Cinematographic works including those created similarly to cinematographic works
  • Representations of a scientific or technical nature, such as drawings, plans, maps, sketches, tables and plastic representations

For these different types of work, copyright grants the creator intellectual property rights a. As the author, he is therefore solely in the possession of Moral and exploitation rights. He is the only person who can decide when and in what form his work will be Opened to the public becomes. In addition, the author can determine to what extent he wants to be associated with his work and the Labelling for that should look like.

The aim of copyright is - in addition to Promotion of cultural products - also ensuring a reasonable remuneration the creator and protection against copyright infringement.

What options there are to take action against a copyright infringement is also discussed in UrhG Are defined.

Measures against copyright infringement

A intellectual property right in the case of works protected by copyright, only the Creator. As an author, he can also protect his works against unlawful copyright infringement Action. In order to take action against the stealing of intellectual property, the legislature grants various options in the UrhG.

In the event of a violation of the copyright laws, the Sending a warning. This is a out of court settlement from civil law, which allows the victim to do so at the same time to assert various claims. Possible claims can be the following:

  • Right to omission
  • Right to compensation
  • Right to destruction, recall and surrender
  • Right to information

The recipients of warnings usually focus on the Claims for damages, they usually require large sums of money. However, lawyers assess the potential risk of the Injunctive relief than significantly higher. Because the right to cease and desist is provided by a so-called cease and desist declaration - a lifelong contract - asserted.

Even if the one attached to the warning Cease and desist declaration looks inconspicuous, you should do this carefully check or have it checked by a knowledgeable copyright lawyer. Because partly difficult to understand formulations can have far-reaching consequences and are disproportionate to the alleged act.

Is through a illegal exploitation Copyrighted works can violate intellectual property rights criminal consequences entail. This is possible if the injured party has one Prosecution Request because there is usually no automatic criminal prosecution with copyright law.

According to UrhG, the amount of the sanctions differentiated between private individuals and traders. In the case of private individuals, both a fine and a Imprisonment for up to three years threaten. If the copyright infringement was used for commercial purposes, the imprisonment can even be up to five years.

Intellectual property in industrial legal protection

The property rights that protect intellectual property and above all important for traders because they enable the development of new products and processes are summarized under the generic term “commercial legal protection”.

The name unites different areas of law and their corresponding laws and regulations.

The following areas of law fall under commercial legal protection:

  • Trademark law
  • Patent law
  • Design right
  • Utility model law
  • Plant variety protection law
  • Semiconductor protection law

For the subject of "intellectual property", these are above all Patent and trademark law of particularly great importance.

Patent law - protecting inventions

The patent law protects the inventor and his invention - similar to the copyright of the author and his work. A patent can be applied for for a product as well as for a manufacturing process.

By registering a patent, the inventor is granted the right to use his idea for 20 years as the only one to be commercially exploited.

This period is intended to enable the developer to use his invention to derive economic benefit and thus one compensation for the time, labor and financial resources invested.

With the completion of Patent license agreements third parties can also use the Use of the patent allowed become. The costs for such use can vary greatly, depending on the Possible uses in business and the profits that can be expected from it.

The registration of a patent takes place at German Patent and Trademark Office (DPMA). In order for an invention to be registered as a patent, the following criteria be fulfilled:

  • Technical invention
  • innovation
  • Inventive step (not an accidental discovery)
  • Applicable for commercial use

Only if these properties characterize the invention does it usually make sense to pursue the lengthy application process for a patent.

Procedure of the patent application process

The whole procedure for the Registration of a patent lasts on average two years and includes several steps and reviews that can lead to delays. The Patent application in the following steps organize:

  1. Preliminary examination
    During the registration, the preliminary examination takes place, during which the documents are checked. In the course of this, it is examined whether the documents comply with the formal requirements or whether there are obvious obstacles to the patent.
  2. Submission of the test request
    A maximum of seven years may elapse between registration and submission of the application for examination. An annual fee must also be paid after three years so that the registration can continue to be upheld.
  3. Disclosure
    The patent is published 18 months after registration so that the company can find out about the current state of technical development.
  4. Audit notices
    The inventor receives the evaluation of the test application in the form of a test report. When examining the patent, two different results are possible: All criteria are met and the patent is granted or the application shows deficiencies and the inventor has the opportunity to remedy these within a specified period.
  5. Grant
    If the result of the examination report is positive, the patent is granted and an announcement is made in the patent gazette.
  6. Objection
    Within nine months of the announcement in the patent gazette, third parties can file opposition to the patent. If opposition proceedings are initiated, the invention is checked again. If the period expires without an objection, the patent is final.

Once a patent becomes legally binding, it becomes Legally protected for a maximum of 20 years. In order for this protection to endure, however, the Maintenance from the third year one fee to be paid.

So that a patent can also be used by others after this period of protection has expired and is of benefit to society, the invention in the patent application comprehensible and precisely described become.

Protect intellectual property with a patent

Became a Invention protected by a patent, the owner of this - usually the inventor - receives various rights. For example, he can benefit from the commercial use of the patented invention Right to cease and desist assert. Because nobody is allowed to manufacture, circulate, use or offer the invention as long as the patent exists.

Make exceptions to this prohibition of use Research purposes and a Use on a private basis.

To against a Infringement of property rights patent holders have the option to proceed Infringement action in a civil court to strive for. The arrangement of Coercive measures the court can help protect the inventor's rights. Another option is also one Criminal complaint at the public prosecutor's office or a court.

Trademark law

Brands influence purchasing decisions decisive, because they turn anonymous goods into branded articles with just a few letters or a symbol. Customers often place their trust in these brands because they associate them with quality or emotion. So that these Promise through a brand are also complied with and action can be taken against counterfeiting can, trademark law is of great importance.

Everything a brand can be is made possible in the Section 3 (1) of the Trademark Act (MarkenG) defined as follows:

All signs, in particular words including personal names, images, letters, numbers, audio symbols, three-dimensional designs including the shape of goods or their packaging, as well as other presentations including colors and color combinations, which are suitable for the goods or services of a company, can be protected as trademarks to distinguish other.

A brand can do both a single product, a entire product range or even that Name of a company be. In order for trademark protection to arise, the symbol must be in the Trademark register at the DPMA be entered. Because through this entry and the resulting Proof of the mark, the trademark claims are easy to enforce.

A trademark can be owned by both companies and private individuals.

Registration and registration of a trademark

So customers and manufacturers protected from plagiarism are or can take action against them, the registration of a trademark with the DPMA is necessary. This consists of the following steps:

  1. Registration
    When registering, it is important that the trademark is submitted in the form in which it will be used in the future, because this is the only way to protect it. In addition, precise information must be given about which goods and services you want to identify with the brand.
  2. Examination procedure
    Before a trademark is registered, it is checked. This procedure checks whether there are absolute obstacles to protection. Absolute barriers to protection are, for example, the risk of being misled or of a violation of common decency.
  3. registration
    If the inspection did not reveal any defects, the trademark is registered. As proof, the applicant receives a registration certificate with the corresponding extract from the register.
  4. publication
    In order for the public to know about the existence of the trademark, the entry in the official electronic trademark gazette is indicated.
  5. Contradiction
    If a newer mark shows a strong similarity to another or is even identical to it, an objection can be filed against this. If the objection is successful, this may even result in the trademark being deleted.
The trademark law provides a so-called for registered trademarks "Compulsory use" in front. In order for the right to a trademark to continue to exist, it is therefore necessary to also have it to use for planned goods and services. He follows no use for more than five years, the trademark may be deleted.

Options in the event of trademark infringements

In the case of registered trademarks, against intentional or negligent violations of the law proceed. The owner of a trademark can own his intellectual property through his Right to cease and desist assert and possibly also damages desire.

At Counterfeit products there is also the possibility of illegally labeled goods confiscate by the customs authorities to leave and thereby a To prevent import and export. In addition, the Destruction of the forgeries are required.

Intellectual property: overview of the most important areas of law

The following table shows the most important areas of law in the field of "intellectual property". In it you will find the most important information on copyright, patent and trademark law summarized:

Copyright and Related Rights
Intellectual Property
lawCopyright Act (UrhG)Patent Act (PatG)Trademark Law (MarkenG)
Protected creationsWorks of literature, science and artTechnical inventionsBrand to differentiate between goods
Requirement for protection- Personal spiritual creation
- creativity
- individuality
- novelty
- Commercial applicability
- Inventive step
- Differentiation from other brands
- Graphic representation
- More than a mere description of the goods
Insertion of protectionWhen the work was createdRegistration with the German Patent and Trademark Office (DPMA)Registration with the German Patent and Trademark Office (DPMA)
purposePromotion of culture and protection for authors and worksTechnical progress and remuneration for inventorsConsumer protection
Duration70 years after the author's death20 yearsunlimited (extension by 10 years)
(Granting of usage rights possible)

Intellectual property - short and compact

Under the collective term "intellectual property" are the property rights to immaterial creations summarized. These rights, through which the works are protected, include, among other things Copyright, trademark and patent law.

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What does the term “intellectual property” mean?
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