Written by Andrea Dawson, Senior Lawyer and IP Specialist.
Intellectual property (IP) owners have many ways to protect their valuable assets. Perhaps the most obvious way is to register intellectual property in the relevant jurisdictions and then enforce those IP rights against third-party infringers.
When it comes to doing business in which your IP is involved, especially in Latin American countries, two key points should be taken into account:
(1) that your IP rights be registered before the relevant governing body, and (
2) Contracts should be drafted in writing, and IP should be covered by such agreements.
Regarding the first point, it is essential to protect your IP using registration since, unlike what happens with copyright in it is enough with the creation of the work to be considered the author. In the case of industrial property, the right is acquired through registration. Without registration, it will be tough to defend the rights of unauthorized use by third parties. Furthermore, hardly anyone will be interested in acquiring rights of which there is no existence or ownership. When the technology is not protected, it is considered a public domain because there is no legal requirement that requires the consent of anyone to use it.
The second key point mentioned in developing and protecting your company’s intellectual property is contracts. Contracts and intellectual property go hand in hand. No contract signed by your company is unimportant, and all details must be reviewed to ensure that they enhance and do not harm your intellectual property assets. In fact, it is through contracts that intellectual property rights can be sold, licensed or even transferred. A bad contract can lead to litigation, unnecessary expense, and a loss of valuable time.
Typically, IP appears in the following types of agreements:
1) Non-Disclosure Agreements and Confidentiality Agreements
2) Memorandum of Understanding
3) Agency Contracts
4) Work Contracts
5) Sale/assignment of your IP
6) Trademark/Patent and Technology Transfer License
7) Joint venture agreements
8) Manufacturing agreements
9) Distribution agreements
10) IT agreements
11) Franchise agreements.
Most companies rely on their employees, contractors, consultants or other companies to develop their intellectual property. It is essential to enter into a contract with that person or entity before starting work. Even the early stages of work can give rise to critical rights, and it is essential to determine from the get-go who owns the intellectual property that is created and how it will be treated in the future.
It is important to note that these contracts are not long or overly formal, but they must be clear and contain adequate language on intellectual property rights. It is essential in this area to obtain expert legal advice before entering into an intellectual property agreement that binds you legally, no matter how simple it may seem.
Contracts are an efficient way of protecting your IP that work hand in hand with registration. As many companies know, a large part of your business´s value derives from IP. IP can create value and benefits in several ways: it can be sold or licensed, offered as equity in a joint venture, offered as a basis to enter into strategic alliances, integrated into a current business or used to create a new business.
Over the years, several companies have burned because they did not take the proper steps to protect their IP before doing business in the Latin American region. We strongly suggest putting in place a plan the moment you identify the Region as a target market.
Harris Gomez Group has a specialised team of IP and Tax lawyers that help foreign companies protect and use their intellectual property assets. Our team of specialists understand Common and local laws, which allows us to bridge the gaps that arise when doing business in the Region.
If you are interested or need any assistance, please contact Cody McFarlane – cmm@hgomezgroup.com
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