FLINN offers legal and business advice on the selection of the most appropriate operational structure when exploiting intellectual property rights, joining collective management organisations (also referred to as “collecting societies”) and drafting of agreements. FLINN is also consulted for ‘due diligence’ assignments regarding the IP/IT rights that are the subject of Mergers or Acquisitions and also with respect to litigating any of such IP rights, either as a plaintiff or defendant.
Copyrights protect literary and artistic works that are ‘original’ creations. Copyrights and related rights are essentially exclusive rights under which the proprietor can prohibit others from reproducing his or her works or communicating them or making them available to the public. Increasingly, the subject matter of copyrights is harmonised across borders. This is accomplished through treaties at the international level, and through directives and explanatory case law within the EU.
A comprehensive understanding of the relevant legislation and case law – together with insight into the practices in the sector – is necessary if you, as an author, composer, artist, producer, broadcaster or other entitled party, wish to protect and exploit your rights.
FLINN’s lawyers have built up strong practical experience in the drafting and negotiating of author agreements (including publishing agreements), artist agreements, license agreements (including obtaining consent, so called ‘clearances’, for dubbing in radio and television spots or films, adaptations and/or translations), distribution agreements, production agreements, broadcasting agreements, and other creative sector agreements. Clear insight into the interests and mechanisms of the creative sector distinguishes FLINN’s contracts advice. In addition, where necessary, FLINN advises on the most appropriate legal proceedings to enforce those rights. (See infringements counselling below).
- Database Protection
Databases are increasingly important in all sectors of twenty-first-century economies. FLINN will be pleased to advise you on optimising protection of your database rights including for websites. In addition, we are consulted about the enforcement of rights; including legal disputes (see Infringements Counselling below).
The purpose of the March 1996 EU Directive on the legal protection of databases was to create a new (and in part sui generis) harmonised legal regime for the protection of database rights in Europe. It defines databases as ‘a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’.
Two kinds of protection are provided:
The database right (the ‘sui generis’ right) – protects substantial investment made by database producers in obtaining, verifying and presenting database contents.
Database copyright protection arises from the structure of the database, where the selection and arrangement of the database’s contents, shows intellectual creativity. (Copyright protection of databases is part of existing EU international WTO obligations.)
A 2005 evaluation found that the sui generis protection was used in various fields by different companies, among which publishing, news agencies, telecom, direct marketing, bioscience and mapping companies – but the scope of the sui generis right was unclear. A new evaluation is underway and a report is due in the first quarter of 2018. The evaluation will focus mainly on the sui generis protection.
Not surprisingly, intellectual property protection plays an important role in regulating the creation and use of designs. Depending on the case at hand, the appropriate protection regime to be relied may include: the registered design system established by the Benelux Convention on Intellectual Property (marks and designs) of February 25, 2005; Copyright protection provided by the Law of June 30, 1994, on Copyright and Neighbouring Rights; and the ‘unregistered design right’ protection laid down by Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs.
FLINN offers assistance and follow-up advice before and after Design registration. Including, among other things, on the drafting and negotiation of production and license agreements. Since 2010, we have been designated representatives of the Union of Designers in Belgium (UDB). UDB is the only recognized national professional association of interior architects, interior designers, graphic designers and product developers. We are also consulted about the enforcement of rights; including legal disputes (see Infringements Counselling below).
A patent is a limited monopoly that is granted in return for the disclosure of technical information. In order to obtain such a right, the applicant is required to disclose his invention so that it can be used by a ‘person skilled in the art’. In return, the state issues the applicant with a patent that gives him the exclusive right to control the way his patented invention is exploited for a twenty-year period. While the protection provided by a patent is not as long as the protection provided by copyright law or trademark registration (with renewals), the rights granted are more extensive. The rights granted to the patent owner cover most commercial uses of the patented invention. In addition, the rights will be infringed irrespective of whether or not the defendant copied from the patented invention.
A patent can be applied for at the national and the international level (European Patent Convention). Since 2012 several components for a Unitary Patent Protection (also referred to as “the European patent with unitary effect” or the “European Union patent”) have been approved at the European level by way of regulations and a corresponding treaty.
FLINN is consulted about disputes under patent law (see further Infringements Counselling below) and for technology transfers. If so desired, cooperation with external technical experts takes place. We also offer advice with regard to the favourable tax measures for patent income that offer considerable financial advantages for proprietors of inventions.
A trademark confers on the proprietor certain exclusive rights to use a particular sign in relation to specified commercial activities. The sign (word, image, form, colour or even a scent) must be capable of distinguishing the goods and services of one undertaking from those of other undertakings. Accurate trademark protection may become a company’s most important asset. For instance, the ‘Apple’ brand is estimated to be worth approximately $ 170 billion, ‘Google’ $ 102 billion, and ‘Coca Cola’ approximately $ 56 billion. Such commercial value is impossible without protection of the associated trademarks.
Once a trademark (word, image, form, colour or even smell) has been registered the trademark proprietor may, on the basis of the grant of an exclusive right to use, and under well-defined conditions, prohibit any third party from using an identical or similar mark. A trademark can be registered at several levels: at the national (for example Benelux), the EU or the international level.
- Infringements counselling
FLINN is consulted regarding enforcement of copyrights, database rights, design rights (incl. fashion), patents and trademarks, and the exploitation thereof (e.g. franchise and license agreements). Failing an amicable solution, proceedings are instituted, and (where appropriate) the customs authorities are involved, in order to block counterfeit or infringing goods. In the case of infringements of a patent the most accurate strategy is elaborated: potentially including licensing of Standard Essential Patents (SEPs) on Fair Reasonable and Non-Discriminatory (FRAND) terms. If an amicable solution cannot be found, FLINN will institute proceedings on your behalf.