Patents protect scientific and technological inventions. This includes both products and processes, for example, pharmaceutical compounds as well as the ways those compounds are made. Plant-variety rights are an example of rights related to patents.
Not all inventions qualify to be patented. To be patentable an invention must:
- be novel (not known)
- involve something called an inventive step, which means that the invention is not obvious to an expert
- be useful.
Patents are sometimes highly technical because those who create the inventions are scientific specialists. Patented inventions are, however, found in everyday life and include many mechanical things and simple objects, such as engine parts, pens and hairbrushes.
Smell, sound, shape and colour
From 2003, smells, shapes, sounds and colours were able to be trademarked. The New Zealand Rugby Football Union grabbed the colour black; Mr Whippy went for a bit of ‘Greensleeves’ and entrepreneur Rob Miller fought for and won the right to trademark the swan-neck shape of his Klipon kiwifruit vine tie. He said, ‘I’m the first person [in New Zealand] to have got a trademark for a shape, and it cost a small fortune.’1
Trademarks protect the names and images that consumers associate with products and businesses. The reason that the law does this is to enable consumers to tell one product from another.
Related to trademarks are geographical indication rights. These are the names of towns, countries or areas that are applied to certain products, and often indicate quality, reputation or production methods.
Some economists say that trademarks also help consumers distinguish quality products from those of lesser quality. In addition, trademarks protect one trader from unfair competition from another trader. For example, the phrase ‘Lemon and Paeroa’ cannot be used on drinks that do not come from the company that makes the Lemon and Paeroa drink.
Use of trademarks
In the modern world trademarks are everywhere. They are used in language – for example, New Zealanders sometimes refer to shoe polish as ‘nugget’, which is, in fact, a brand name. Because trademarks are so widely used, trademark law has to be careful about not restricting free speech.
Trademark law protects traders from others using their trademarks on competing products, but it does not prevent fair comment on products. Trademarked products are allowed to be criticised. That is, it can be pointed out they don’t work or they represent bad ideas (as long as those discussions are not defamatory or deceptive).