What is Intellectual Property?
Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, name and images used in commerce. As technology startups are fundamentally based on such “creations of the mind”, IP plays a central role in the life of any startup business.
Can I raise funding? What happens if my employee launches a competing business? Am I allowed to use this code in my product? What should I do if someone registered my business name as a URL? Can I sell my products abroad? How much is my business worth in a sale? These, as well as many other business-critical matters, are a question of IP law. While the details might be delegated to outside counsel, startup founders should have a basic understanding of the major types of IP and their role in their own strategy.
Broadly speaking, the major fields of IP applicable to startups are:
Patents
An exclusive right granted for a new, useful and non-obvious invention. The invention may be a product or process that is a new way of doing something, or offers a new solution to a problem. Patents are meant to provide a financial incentive for individuals and businesses to innovate, by granting them the right to prevent others from exploiting the invention for a set period of time (20 years in most cases). This exclusivity period should allow the inventor to sell (or license) the invention for more than otherwise, thus recouping their development costs and making a profit on the investment. In exchange, the inventor must disclose the invention to the public, thereby benefiting society at large with this new knowledge. After the expiration of the patent, the invention enters the public domain, allowing anyone to exploit it, and ideally (for society at least) driving down its price. Petty patents and utility model certificates (as they are known in Cambodia) are forms of IP related to patents, granted for inventions of less significance and for a shorter period of time.
Copyright
Copyright grants authors, artists and other creators exclusive rights for their works, including books, photographs, videos, computer programs, drawings, databases and other creations. The work must be original – meaning the work of the author themselves – but otherwise not novel. Thus, if a programmer wrote code that was identical to that of another, without actually copying it, they would still have copyright in their creation. Copyright is obtained automatically upon creation – there is no need to register the work with the copyright office, though there may be certain advantages. Copyright is for a set period of time – usually a number of decades – depending on the country, type of work and identity of the author.
Trademark
A distinctive sign that identifies certain goods or services as originating from a particular individual or company. Trademarks (and related service marks) are rooted in protecting consumers from being confused or tricked as to the source. A trademark allows its owner to prevent others from using the mark – as well as confusingly similar ones – for specific goods or services. In most cases trademark rights are obtained by registration with a trademark office, though in some cases unregistered marks are afforded some rights. In Cambodia, trademarks are valid for ten years, and can be renewed indefinitely.
Trade Secret
Confidential business information that provides the enterprise with a competitive edge. The scope of information can be very broad – including inventions, code, market information, customer lists, and much more. Obtaining and/or exploiting such information through improper means could be a violation of unfair competition law in Cambodia. There is otherwise no specific trade secret law in Cambodia. Trade secrets are often protected through non-disclosure agreements, typically in conjunction with employment or financing for startups.
Industrial Design
This form of IP protects the visual, aesthetic aspect of an article. This may be the three-dimensional shape of the product itself or its packaging, or two-dimensional features like the patterns, lines or color combinations. The design must be new and non-functional, meaning the technical features are not protected (that would be the realm of patents). In some cases, the industrial design could also be registered as a three-dimensional trademark or copyright. Rights are obtained upon registration and are valid for a set period – in Cambodia for five years initially, renewable twice for a total potential term of 15 years.
While each regime of IP is usually thought of separately and provided for in separate laws, in practice there can be overlap and interaction between them. So for instance, the code developed by a startup might be subject to both copyright and trade secret protection, and then lead to a patent being granted. Or a product be registered as an industrial design, with certain functional elements patented. It might also be registerable as a three-dimensional trademark, and perhaps an element of it is copyrighted.
