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Manage your Intellectual Property in South-East Asia

Glossary

South-East Asia - The Association of South East Asian Nations: South-East Asia was founded in 1967 with the signing of the South-East Asia Declaration (or Bangkok Declaration) by the founding members Indonesia, Malaysia, Philippines, Singapore and Thailand. Since then, Brunei Darussalam, Vietnam, Lao PDR, Myanmar and Cambodia have joined to constitute the current ten Member States of South-East Asia.

Arbitration - Arbitration is one of the alternative dispute resolution mechanisms that parties may use to settle their disputes instead of going to court. Under this mechanism, the final decision is awarded by a neutral third party (‘arbitrator') and shall be binding.

Author (Copyright) - An author is the creator of a work. In order to be considered an author, it is generally acknowledged that a certain level of creative contribution to a work must be met. Authorship entails certain moral rights, such as the right to attribution (i.e., to be named as the author), that cannot be transferred or licensed, and therefore will stay with the author even in a situation where he/she does not own the copyright.

Confidentiality Agreement - A confidentiality agreement or non-disclosure agreement (NDA) is a private legally binding contract whereby valuable information is kept safe. It establishes the conditions under which one party (the disclosing party) discloses information in confidence to another party (the receiving party). All types of information can be transmitted in these agreements, such as ideas, know-how and descriptions of inventions or business information. The common characteristic though is that the disclosed information is valuable for the disclosing party to the extent that it must be kept away from the public domain. A confidentiality agreement is crucial for SMEs in business negotiations and for employers in relation to their employees.

Copyright - Copyright is a legal term which refers to the rights granted to authors, artists and other creators for their creations. Copyright entitles the owners of literary and artistic works to a set of exclusive rights over their works. These rights, generally, include:

  • copying;
  • translating;
  • adapting and altering;
  • communicating and performing to the public;
  • distributing;
  • renting and lending copies.

Copyright grants two kinds of prerogatives:

  • economic rights;
  • moral rights;

So-called ‘economic rights' enable right holders to control the use of their works. These rights normally take the form of exclusive rights and include the right to reproduce and communicate the work to the public.

The author of a copyrighted work also has the right to claim authorship, as well as the right to object to a distortion and mutilation of the work that may be detrimental to his honour or reputation. These rights are generally known as ‘moral rights'. Moral rights may include the right to decide on when or whether to make the work public, the right to claim authorship of the work and the right to object to any derogatory action in relation to the work.

Counterfeiting – Counterfeiting is the practice of imitating genuine goods, often of inferior quality, with the intent to take advantage of the superior value of the imitated product. Counterfeiting may violate protections under trade mark, copyright, patent or design laws. An example for counterfeiting would be selling of products imitating genuine goods under a brand name without the brand owner's authorisation.

Customs – Customs are the governmental agency authorised to collect duties levied by a government (such as taxes) imposed on imported and, less commonly, exported goods. Their objective is also implementation of trade enforcement measures including checking and detaining suspected infringing goods crossing a border.

Disclosure (Patents) – Disclosure refers to making an invention available to the public. A disclosure made outside the patent system, deliberately or not, will make the invention unpatentable. Within the patent system, the applicant must make a full and clear disclosure in the application of the invention for which protection has been solicited. In return a patent protection (exclusive rights for a limited time period) will be granted.

Enforcement (IP) - Enforcement is the act of making sure IP rules are adhered to or obeyed. It refers to a legal system by which authorities or victims of infringement act in an organized manner to enforce intellectual property rights by discovering, punishing and holding the infringers accountable for the associated damage. There are four main avenues of enforcement: administrative actions, civil litigation, criminal prosecution and customs seizures.

There are four main avenues of enforcement: administrative actions, civil litigation, criminal prosecution and customs seizures.

Geographical indications (GIs) - A Geographical Indication is a name or a sign used on goods that have a specific geographical origin and possess qualities, a reputation or characteristics that are essentially attributable to that place of origin.

Novelty (for patents) – Novelty means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad, or has been publicly used or made known to the public by any other means in the country, nor has any other person filed previously with the Patent Administration Department under the State Council and are recorded in the administration department.

Patents – Patents are licenses which protect innovations and must be filed before the invention becomes known to the public. In South-East Asia, the patent types available to register differ by nation. For information on each country's patent system, visit our IP Factsheets. It should also be noted that a European registered patent has no legal effect in South-East Asia.

Small and Medium Enterprises (SMEs) –SMEs are companies with less than 250 employees and with either a turnover of less than or equal to EUR 50 million, or a balance sheet total of less than or equal to EUR 43 million.

Technology transfer  -This is the transferring of technical know-how, skills, technology or methods of production from one company to another.

Trade fairs  – Trade fairs are exhibitions which allow companies in a certain industry to showcase their products or services. Although attending a trade fair or exhibition in South-East Asia can reap substantial benefits, SMEs should be aware of the associated risks from exposing IP to potential infringers.

Trade marks  - Generally speaking, a trade mark is a sign which serves on the market to distinguish the goods and/or services of one undertaking from the goods and/or services of others, and over which the owner has an exclusive right. Trade marks are words, logos, devices or other distinctive features which can be represented graphically. In some South-East Asia countries, such as Singapore, Vietnam and Thailand, they may also consist of the shape of goods or their packaging in three-dimensional form.

Trade marks are an essential part of the identity of goods and services. They help deliver brand recognition, i.e. they distinguish your company from the competition. They also help to build trust, reputation and goodwill for your company, as well as play an important role in marketing and advertising.

Trade secrets – While the conditions for protection guaranteed by a trade secret may vary from country to country, typically three general standards exist which are referred to in Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). A trade secret is information that:

- is not generally known to the public (kept as confidential);

- confers some sort of economic benefit on its holder;

- is the subject of reasonable efforts by the rightful holder of the information to maintain its secrecy (e.g., through confidentiality agreements).

According to the World Intellectual Property Organization (WIPO), any confidential business or industrial information (including sales methods, distribution methods, consumer profiles, advertising strategies, lists of suppliers and clients, and manufacturing processes) which provides an enterprise a competitive edge may be considered a trade secret. Most theft of trade secrets cases involves current or former employees. Protection of trade secrets is not applied uniformly across South-East Asia; visit our IP Factsheets for country-specific information.

For more details about the above terms and concepts, you can also check out the China IPR SME Helpdesk and the EU IPR Helpdesk.