A trademark is a type of intellectual property that is typically a sign, design, or expression that is used to identify products or services from a particular source. Thereby, the trademark may be used to distinguish these products and services, from those originating from a different source. As such, the trademark defines the origin of the product or service, and may be used for publicity and advertising. Often, the trademark is a sign for customers that a product or service labelled by the trademark may have some well-defined qualities associated with products and services originating from the party owning the trademark.

The protection provided by your trademark means that third parties may not use your trademark for selling their services or products, except when a licensing agreement is agreed between you and the third party. Trademark protection typically provides protection for use of the trademark in the context of the product or service commonly identified with the trademark. In some countries, it may not be required to register a trademark for obtaining protection for the trademark. However, in most countries, such as Belgium, protection is only provided once the trademark is registered.

A patent is a type of intellectual property for technical inventions. The patent provides a disclosure of the invention in exchange for protection of the invention defined by the patent. The patent provides the owner of the patent with the right to prevent third parties to make, use or sell the invention. The protection provided by the patent is limited to the territory for which the patent is valid, and is limited in time, typically up to 20 years. Furthermore, a patent may be transferred between owners, whereby the protection rights provided by the patent are transferred.

In order to obtain patent protection for an invention, an application for a patent must be filed. There are certain requirements for an invention for it to be protectable by a patent. The invention must be novel and inventive with respect to the state of the art. In short, this means that the invention must differ in at least one way that is not an obvious modification of the prior art. Furthermore, a patent may only protect inventions that are susceptible of industrial application.

Another important aspect, which differentiates patent protection from other types of protection (such as trademarks, design rights and copyrights), is that the novel and inventive feature should be a technical feature. As such, the novel and inventive feature may not relate to, for example, a scientific theory, an aesthetic creation, or rules for playing games. However, importantly, it is only the novel and inventive feature that should be technical. Indeed, many patented inventions deal with inventive technical features for games, and furthermore, many patents are a practical application related to a scientific discovery.

Design protection is a type of intellectual property that may be obtained for the appearance of a product, or the appearance of part of a product. The appearance may relate to a shape, colour, texture, et cetera, that distinguishes the design from that of known designs. Design protection may be used to prohibit third parties from using your design in their products, except if you authorize these third parties to use you design, for example in exchange for royalties.

To be able to obtain design rights for you design, the design is required to be novel and have individual character. A design may be protected, without registration, to a limited extent (that is, only from copying of the design) by the rules established in the EU Design Regulation, and only for up to three years. To gain more extensive design rights, and to gain these right for a longer period of time (typically up to 25 years), the design needs to be registered.

Apart from these design rights, a design may also be protected by a copyright, which has different requirements than design rights.

A copyright is a type of intellectual property that is strictly related to works that result from authorship. Protection by a copyright prevents third parties from unauthorized copying and multiplying your copyrighted work. This protection may last for a very long time. For example, in Belgium, copyright protection may last for up to 70 years after the decease of the author. For a work of authorship to be protectable by copyright, the work must be original. However, different from patents, the work to be copyrighted must not be novel: it is only required that it is not a copy of the work of a third party. As such, copyright protection is relatively easy to obtain. Furthermore, the work of authorship must be fixed in a tangible medium of expression, so that it is possible to perceive, reproduce, or communicate the work.

Copyright protection starts from the moment the work has been made. Different from patents and trademarks, there is no obligation for registration. However, there are advantages related to registering a copyright. In particular, such a registration provides the owner of the copyright with a date, and with a description of the copyrighted work. Indeed, when a third party infringes the copyright, such a registration may help the owner of the copyright to prove that the third party infringed the copyright.

As soon as a trademark is effectively registered, the trademark is the property of the applicant. It then belongs to the intangible assets of the company and thus represents a value in your company.
It is important that the protection applies to the products and services claimed in the registration.
The owner also has the following rights:

• they may sell or license the trademark and thus earn revenue;
• they may oppose counterfeiting;
• they may oppose parallel imports from outside the European Union;
• they may oppose the use and registration of identical or similar trademarks used or registered for identical or similar products; the similarity between the trademarks will be assessed from a phonetic, visual and conceptual point of view;
• in addition, where their trademark has acquired a reputation, they may, in certain circumstances, also oppose very similar trademarks for dissimilar products.

Please note: the government will not intervene ex officio in conflicts between parties. The trademark owner must therefore take and finance the necessary steps themselves to assert their rights.

Yes! Winger is registered service provider for SME e-wallet (KMO-portefeuille).This means that SMEs (with head office in Flanders) are able to get 20 or 30% of the invoice funded when buying advice from our patent experts. Our official registration number is DV.A245522.

SME e-wallet is a support measure from the Flemish government for SMEs that want to improve the performance of the company through (training or) advice. The funding is limited to € 7.500 per year. Visit the website of VLAIO for more information.

Our experts are eager to give advice on all aspects of intellectual property. Going from identification of patentable ideas over protection, long-term strategies and exploitation. Please note: patent drafting and filing are not part of the type of advice that can be funded.

The logo TM is used to indicate that the word/image to which it relates should be considered as a trademark and that it is used as a distinctive element.

The logo ® is used to indicate that the name/image is not only used as a trademark, but is also formally registered in a national register.

There are no legal consequences as such linked to refraining from using a symbol next to the mark – albeit that it can be useful, for instance as an informal warning for third parties or when providing proof of use of a questionable trademark.

However, in some countries such as the US and UK it is illegal to use the ® if the mark is not officially registered.

Accordingly, the distinction between ® and TM is mostly of particular importance in regions where rights derive from the use of a trademark in the market – such as the US – as opposed to registration, which indicates the start of the rights in the European systems.

It’s likely a fake!

Because the trademark registration process is public, some fraudsters use the available information to send deceptive invoices asking for payment for certain “services”.

This is unfortunately a known problem in our sector and the European administration is trying to tackle this issue. You can find the EUIPO’s warning in this context here

As a rule of thumb, you will only receive invoices relating to your IP digitally from a winger.eu email addrress.

If you receive other payment requests, you can ignore them.

If in doubt, of course, never hesitate to forward these requests to us.

There are certain requirements for an invention for it to be protectable by a patent. The invention must be novel, which means that there should be a feature in the invention that is not disclosed in the prior art. Herein, the prior art is understood to be everything that has previously been disclosed to the public, in any form, and by anyone. This may be in the form of a scientific paper, a prior patent, a blog post, a radio interview, etc. Furthermore, the invention must be inventive, which means that the novel feature should not be an obvious modification of the prior art. The invention should be susceptible to industrial application – which is a requirement that is very easily passed. Finally, the novel and inventive feature should be a technical feature. This excludes, for example, scientific theories, an aesthetic creation, or rules for playing games. However, it is only the novel and inventive feature that should be technical. Indeed, many patents deal with inventive technical features for games, and furthermore, many patents require scientific theories to explain their function.

Be sure to contact us for an assessment of the patentability of your idea.

A third party may allege that you copied or infringed a patent of the third party, and request you to either stop using that invention, or pay royalties in exchange for using that invention. Instead of directly obeying to the third party, it may be advantageous to first make an assessment. For example, although the third party alleges that you do infringe their patent, is that actually true? And even if it appears that, indeed, you do infringe their patent: is there a way to invalidate or limit the scope of their patent? Indeed, there may be reasons why the patent is invalid or has a too broad scope. For example, you may know of documents proving disclosure of the invention protected by that patent from before the date on which the application for the patent was filed. Or you may have been selling your product, which contains the invention, already before that application was filed, in which case the patent may be invalid.

As this assessment may be complicated, and may require both technical understanding of your invention and knowledge of patent law, the best way to continue after receiving a notification of a third party alleging that you infringe their patent, is typically to ask for professional help. We are there to determine, together with you, in what way this situation may be handled in the best way for your invention and your business.