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Chapter IX.-INDUSTRIAL-PROPERTY PROTECTION
A plan for the development of new markets or the extension of existing markets abroad for American products must include, if it is to be complete, appropriate consideration for the protection of industrial property.ba Within the scope of the law concerning this commercially important property are: Trade-marks, trade and commercial names, patents, industrial designs and models, and protection against unfair competition.
A practice which has been the cause of considerable annoyance, to say nothing of losses incurred thereby, is the piracy and infringement of American trade-marks in many countries of the world. We look with more or less contempt upon one who would appropriate the mark of another and thereby profit by the goodwill which the latter has acquired in his mark. This goodwill is very often acquired as the result of a considerable expenditure in time and money.
PRIORITY OF REGISTRATION
The so-called pirate is not always so culpable as one might imagine. Often the exclusive appropriation of a mark by its unauthorized registration is entirely proper within the law of a foreign country. In such an event, the proprietor of a mark has only himself to blame for his failure to acquire the legal right to the exclusive use of his mark in accordance with the provisions of the law.
If the law of a foreign country permits the registration of a mark to the first applicant, prior adoption and use by another to the contrary notwithstanding, then the proprietor of a mark in another country should obtain registration of it promptly and before the so-called pirate has had an opportunity to do so. It is obvious, therefore, that vigilance is a most important factor in protecting a trade-mark under the laws of some countries. Many American manufacturers can testify to this as the result of bitter experience.
The American exporter may assert that he is at a loss to know in which countries of the world he should apply for registration of his mark. His first thought in this connection should be to focus his attention on the protection of his marks in those countries in which he has an existing market for his goods. He should then determine whether, under the provisions of the law of those countries, the piracy and infringement of his mark is feasible. In this connection it may be stated that where the law grants to the registrant the exclusive right to the use of a mark without regard to the common-law theory of prior adoption and use, the registration should be obtained as soon as practicable. This prompt registration is not only desirable in those countries in which there is an existing market but also where there is a potential or future market.
baThe term “industrial property" includes certain intangible property such as trade marks, patents, and copyrights. A full study of the subject is "Industrial Property Protection Throughout the World,” Trade Promotion Series No. 165, Government Printing Office, Washington, D. C. ; 20 cents.
REGISTRATION AS EVIDENCE OF OWNERSHIP
The exporter may, then give attention to the protection of his mark in those countries in which registration is not required in order to obtain the property right. However, registration may be necessary as prima facie evidence of ownership in order to bring suit for infringement, or for the purpose of filing with the customs offices to prevent importation of goods bearing infringing marks.
TRADE-MARKS AND GOODWILL
In some countries there has been, for many years, a decided preference for American-made goods. This is no doubt prompted by their superior quality and durability. A consumer in a foreign country purchasing with satisfaction one American product may be a potential buyer of other American products. The foreign competitor is often mindful of this, and, as a consequence, he may use every means available, without exposing himself to legal prosecution, to divert this preference for American products to his goods, which may often be inferior in quality. The t'dress" of the goods and that includes the label, trade-mark, and other means of identification is the instrument most likely to be adopted to accomplish this purpose. He may be quite successful in his attempt if he can acquire the exclusive right to the use of such identifying media (often by registering them) and thereby compel the American exporter to adopt new symbols of identification. Where American marks are thus unfairly, although often legally, acquired, and used on inferior foreign products, the dissatisfied consumer, who may not readily determine the true source of the inferior product, may cease to place confidence, not only in this particular class of products but in all other American products as well. The pirate and infringer may be a source of damage to American foreign trade in general, and this often because of the failure of American exporters to secure timely protection of their marks in foreign lands.
All the commercially important countries of the world have provided ample protection by law and treaty for trade-marks, not only for their own citizens but for foreigners as well. The only requirement is that they must comply with the provisions of the law or treaty.
REGISTRATION PROCEDURE The procedure in obtaining registration of trade-marks abroad differs in accordance with the law and the regulations pertaining thereto. Certain documents must be filed, publications made, and appropriate fees paid. Examination of documents and existing registrations may be made in some countries, to determine the registrability of the mark.
ABANDONMENT AND RENEWALS.
When a mark has been registered, due care should be taken to retain the rights therein acquired, by the user of the mark, thereby avoiding the possibility of abandonment. The law may also impose certain marking requirements, or notice on the mark or label that it has been registered. Renewal of the registration within the prescribed time upon expiration of the existing period of term of registration is an important matter. Failure to renew the registration of a mark or trade name may result in its availability for use thereafter by the public generally, or in its registrability by the first applicant after the expiration of the previous
period of registration.
PATENT PROTECTION ABROAD
The advisability of obtaining patents in foreign countries may be fully as important (at least so far as some exportable products are concerned) as the registration of trade-marks in foreign countries.
If the product which may be exported is the subject matter of a patent, then the owner should give due consideration to the matter of obtaining patent protection without delay.
WHAT CONSTITUTES NOVELTY
A matter of prime importance in obtaining patents is that application therefor should be filed before the time has elapsed in which to obtain them. Novelty of an invention is a most important requisito to the obtaining of a patent. The laws of most countries have rigid requirements regarding novelty. In some countries, an invention will not be considered novel if it has been introduced into the country, or if it has been published or described in a publication within that country so that anyone skilled in the art may put it into operation. In other countries, the invention will not be considered novel if there has been a public use or publication of it anywhere. It is not practicable here to outline all the provisions of foreign laws regarding novelty, but those stated above will illustrate the importance of timely action in applying for patents abroad.
The procedure in obtaining patents varies according to the law of the country. Documentation, the manner of making claims, publication, marking requirements, and many other matters in connection with obtaining and retaining patent rights are set forth in the provisions of law and the regulations pertaining thereto.
WORKING OF PATENTS
When a patent has been obtained, the owner may be required to manufacture or work the patent within a time specified in the law (usually 3 years from the date of application or grant) and not to cease such manufacture during a specified period of time thereafter. What constitutes a working of the patent depends, of course, on the law of the country in which the grant has been obtained. In some countries assembly of parts or importation of the invented products may suffice. In others, manufacture in the home country may be