PATENT OR INVENTION AND A TRADEMARK-PROTECTED SIGN

In order to be able to discuss a patent or an invention, that is, a trademark and a sign, we must first understand what industrial property law is.

Industrial property law consists of a number of legal branches that establish the exclusive subjective right of its holder over the relevant subject matter of protection. These may include patent law, trademark law, design protection law, protection of geographical indications, and others. A common feature of all these rights is that they arise by a decision of the competent administrative authority. In addition, a specific procedure must be followed and strict formal requirements must be met in order for such protection to be established. In Serbia, that administrative authority is the Intellectual Property Office.

In everyday speech, the subject matter of protection is often equated with legal protection, which is not correct. For example, we can hear someone say that they “invented a patent”, or that someone bought goods of a certain brand or mark without knowing the difference between the protection itself and the sign that is the subject matter of protection.

Why can’t everyone produce goods bearing, for example, the “Adidas” or “Nike” sign? Because doing so would undermine the quality and reputation that these signs have achieved, while that same reputation would be abused in order to place a lower-quality product on the market under that sign and create a false impression for consumers. Therefore, this legal protection, on the one hand, protects the company or business entity that produces goods under that sign, and, on the other hand, protects consumers from being misled as to whether their newly purchased goods truly come from valid manufacturers with quality corresponding to the price, or are merely poor copies intended to obtain financial gain by using goods under an already globally recognisable protected sign.

I) WHAT IS A PATENT AND WHAT IS AN INVENTION?

In order to avoid confusion about whether someone invented a certain patent or not, it is necessary to establish a basic foundation regarding legal terminology related to patent law. Therefore, we can say that:

• A patent represents a subjective right;
• An invention is the subject matter of a patent, that is, patent protection;
• While a patent certificate is a public document by which the administrative authority confirms the existence of a patent with erga omnes effect, meaning toward everyone.

Having made a clear distinction between the key terms, it is now appropriate to combine them and say that:

A patent is a subjective right whose subject matter of protection is an invention and which authorises the holder of patent protection to commercially exploit their patented invention. This right is limited both in time and territorially to the country whose competent authority has granted it.

Commercial exploitation consists of the patent holder, as the subject of the right, prohibiting or allowing others to commercially use the patented invention. This may include, for example, manufacturing products based on that invention, placing such products on the market and using them.

In short, an invention is a technical solution to a specific technical problem. This is also one of the essential conditions of an invention: it must belong to the field of technology. Otherwise, we cannot speak of an invention as the subject matter of patent protection. Therefore, scientific theories, laws, discoveries, computer programs and similar matters are not considered inventions. Another essential condition is that the invention must satisfy a certain social need. The person who may seek and obtain protection for their invention is called the inventor, meaning the person who created the invention, and may be only a natural person, or a group of natural persons as co-inventors, while legal entities are excluded from obtaining this type of protection.

The most important division of inventions is into: product inventions, such as inventions of tools, devices, chemical substances and similar items; process inventions, for example, an invention of a process for lifting a certain load, transporting an object or sorting; and use inventions, which represent instructions for the use of a known object.

The procedure for granting a patent is complicated, difficult, lengthy and expensive. On average, the procedure lasts from 3 to 5 years, although there have been cases where it lasted as long as 10 years. The conditions that an invention must meet in order to receive patent protection in this procedure are the following:

1) Novelty of the invention – as the oldest condition, it means that there is no purpose in patent protection if an invention that is already known or protected is being protected.

2) Inventive step of the invention – in order to obtain patent protection, it is not enough for the invention merely to be new; it must also include a certain level of inventiveness that represents a significant leap in technological development.

3) Industrial applicability of the invention – this condition may be only potential and refers to the possibility of producing goods or providing services in connection with the invention being patented.

II) BRAND, MARK, TRADEMARK, SIGN – SIMILARITIES AND DIFFERENCES

It is expected that the terms trademark or sign will not often appear in everyday communication today, except in legal discussions or texts. Due to the increased use of Anglicisms, words such as “brand” or mark are used more often, without necessarily understanding the difference and full meaning.

The original meaning of the English word “brand” was used to indicate that something, usually an animal, was “marked with a hot iron”, which could be considered equivalent to our word žig, or trademark, a term that is rarely used today in everyday speech.

It could be said that a brand represents a unique and identifying set of visual elements that distinguish a company and its products and services from competitors, while creating different emotional, cultural and rational associations, beliefs, expectations and consumer experiences.

This definition is not significantly different from the definition of a trademark: a trademark is the name for a subjective industrial property right whose subject matter of protection is a sign, symbol or mark, which may be expressed through various visual motifs and by which the holder of that subjective protection marks their product or service in commercial transactions. Its essence is to distinguish it from the same or similar goods or services of another entity. It has no final time limitation, as it may be renewed an unlimited number of times.

Now that we have established that a trademark is a subjective right that protects a certain sign, it is necessary to explain what is meant by a sign.

A sign is the subject matter of trademark protection and may be any name or sign, whether verbal, graphic, three-dimensional or combined, that is capable of serving in trade to distinguish certain goods or services of one business entity from the same or similar type of goods or services of another business entity. A sign may also be fictional, meaning that it does not have any particular meaning in itself, such as the “Audi” car sign consisting of four intersecting circles, or it may be a symbol that has a generally known meaning, such as the goods of the sports manufacturer “PUMA”, which uses the recognisable sign of a jumping wild cat of the same name.

In order for the subject of protection, which in this case may be either a natural person or a legal entity, although more often it is a legal entity, to obtain the right to protect a sign by trademark, the sign must meet certain conditions. The decision is also made by the Intellectual Property Office. These conditions may be absolute:

1) Distinctiveness of the sign – the purpose is to distinguish and individualise the goods of one entity from the same or similar goods of another entity;

2) The sign must not cause confusion in trade;

3) The sign must not be contrary to law or morality;

4) The sign must not contain official quality marks – the law clearly specifies official quality marks used to mark certain types of goods, such as precious metals, and such signs cannot be protected by trademark.

Other conditions fall into the group of relative conditions and may include, for example: the sign must not be identical or similar to an earlier protected sign of another person for the same or similar type of goods, or to an earlier filed sign of another person, nor identical to a well-known sign regardless of the type of goods, and so on.

A trademark is created by an official decision of the Intellectual Property Office, that is, a decision granting the trademark, and by its entry into the trademark register. It may last indefinitely, provided that the prescribed fees for maintaining the trademark in force are paid within the required deadlines.

III) CONCLUSION

Based on all of the above, we come to the conclusion that someone cannot “invent a patent” or “be the creator of a patent”. Rather, the invention is what is newly conceived, and it precedes the patent and patent protection, which is confirmed and granted by a special competent administrative authority, in Serbia by the Intellectual Property Office. On the other hand, with trademarks, we encounter the problem of replacing this term with the term brand, which belongs to the English vocabulary and is associated with the sign and the goods of the manufacturer using that sign in everyday trade of goods and services. Therefore, it should again be emphasised that a trademark represents legal protection granted by an administrative authority for a specific sign that is the subject matter of such protection.