Introduction island nation the preeminent locale for developing, registering

Introduction

 

Singapore provides one of world’s most robust regimes for the
protection a company’s intellectual property. In 2016, the World Economic
Forum’s Global Competitiveness Index ranked Singapore fourth in the world for
intellectual property protection. The high ranking results from a concerted
effort by Singapore government to encourage the development and registration of
intellectual property in the country and to provide robust legal frameworks for
vigorous protection of registered rights.

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I.           
General
Overview

 

1.      WHAT
IS INTELLECTUAL PROPERTY

 

Intellectual property (IP) refers to any
man-made creation for which exclusive rights are recognized by the government.
In Singapore, there are three mechanisms by which IP rights can be registered:
a patent, a copyright or a trademark. Intellectual property may be an inventive
process or design, which is protected in Singapore under its patent laws.
Examples of patented inventions include a drug’s formula, Ford’s assembly line
or Apple’s iPod. IP may also be the product of an artist or writer in the form
of a musical composition, literature, performance or piece of art. These
creations are given copyright protection in Singapore. The third type of IP
protection, a trademark, grants businesses the exclusive rights to the name or
symbol they use to mark their company and goods. IP is property that the owner
can use; alternatively, the owner can sell it or license it for a profit.

 

2.      SINGAPORE
ENCOURAGES THE DEVELOPMENT AND REGISTRATION OF INTELLECTUAL PROPERTY

 

In 2013, the Singapore government rolled out
its Intellectual Property (IP) Hub Master Plan, a ten-year road map for making
the small island nation the preeminent locale for developing, registering and
defending intellectual property. As part of that plan, the Singapore government
proposed the introduction of an IP-Box tax regime similar to the ones in the
Netherlands and the Ireland. In addition to its IP-Box tax initiative, the
Master Plan proposes improvements in training its workforce to create IP and in
its institutions to protect that IP. Many of those improvements are aimed at
the Intellectual Property Office of Singapore (IPOS). With its Master Plan,
Singapore intends to become the preeminent locale for IP development,
registration and protection.

 

The Singapore government encourages the
development and registration of IP through generous financial incentives and a
favorable tax regime. For example, it provides grants for IP development to
small and medium sized companies (with at least 30% local shareholding) or to
companies that want to expand overseas. It also offers a Productivity and
Innovation Credit (PIC) for companies that spend money for developing IP. The
PIC can be in the form of:

 

                                                       
i.           
A 400% tax deduction on up to S$400,000 of
spending, or

                                                     
ii.           
A cash payout of up to S$100,00

 

The PIC incentives are in addition to the low
overall corporate tax rate of 17 percent. Singapore also provides extensive tax
treaties with other countries for income created through IP; it offers tax
credits for income from countries, such as the United States, that don’t have a
tax treaty with Singapore.

 

The IPOS is a statutory board under the
Ministry of Law that was formed in 2001 to implement the country’s IP policy.
IPOS helps inventors, entrepreneurs and businesses create and protect and
leverage their innovations. You register your IP, in person or online with
IPOS. To help you protect your IP, it directs you to IP service providers, such
as attorneys or consultants, and provides free seminars. If you have a dispute
about registration, IPOS provides hearing and mediation services to resolve it.
It also helps you secure financing for your business venture by using the value
inherent in your business’ IP. IPOS is in the process of developing in-house
search and examination capabilities in key technological areas to increase the
efficiency of reducing the cost of filing in Singapore.

 

3.      HOW
SINGAPORE DEFENDS INTELLECTUAL PROPERTY

 

In addition to encouraging the development
and registration of IP in Singapore, the government also vigorously defends IP.
IP rights are territorial, which means that, if IP is registered in Singapore,
those rights generally will be defended there.

 

The Singapore government understands that the
ability to resolve disputes fairly and efficiently will attract more IP
development and registration, which will further fuel the economy. Therefore,
the legal system of courts; alternative dispute resolution; and laws developed
by Parliament and judges are designed with IP rights protection in mind.

 

Singapore’s legal system has an international
reputation for neutrality, efficiency and transparency. In 2002, Singapore
created a specialized IP Court to handle increasingly complex IP cases. In
2010, it established a WIPO Arbitration and Mediation Center, the only office
outside of Geneva. Collaboration between IPOS and WIPO allows parties to settle
IP disputes without resorting to litigation, which reduces the time, expense
and frustration involved. Finally, the IP Academy of Singapore offers a
Graduate Certificate in IP Law, ensuring the country has attorneys and jurists
trained to handle IP matters.

 

    II.           
IP Law in Singapore

 

Singapore provides a comprehensive legal framework and
supporting infrastructure for protecting patents, copyrights, trademarks, and
other types of intellectual property. An overview of the framework for each is
provided below.

 

1.      PATENT
LAW

 

Singapore protects inventive designs and
processes through the Patents Act, which is based on the United Kingdom’s
Patents Act of 1977. Singapore patents are protected internationally under the
Patent Cooperation Treaty (PCT). According to IPOS, “a patent is a right
granted to the owner of an invention that prevents others from making, using,
importing or selling the invention without his permission.” A patent in
Singapore is valid for 20 years, so long as the owner pays the annual renewal
fees. Once registered, the owner can use, sell or license the patent. Licensing
a patent, or a patent, or any type of IP, can be lucrative. The details of IP
licensing are beyond the scope of this article, but you can learn more here.
Generally, the owner would be the inventor, but that may not be the case if the
inventor develops it during his or her employment at a business.

 

The criteria Singapore uses in granting a patent is that the
process or design must be:

 

                               
i.           
New: Should not be publicly know anywhere in the
world.

                             
ii.           
Inventive: Even if it is new, it must be an
improvement that would not be obvious to someone with technical skill or
knowledge in that field.

                           
iii.           
Industrial application: Should have practical
application.

 

The insistence on the patent application satisfying all three
criteria brings Singapore in line with other countries such as the United
States and the United Kingdom. In addition, Singapore will not grant patents to
inventions that: 1) encourage offensive, immoral or anti-social behavior, or 2)
relate to the diagnosis or treatment of the human or animal body.

 

A patent can be registered in one of two ways:

 

                               
i.           
Domestic application: Applicants wishing to
apply for a patent in Singapore only can file with the Registry of Patents,
which is part of IPOS, in person or online.

                             
ii.           
International application: Applicants wishing to
apply for a patent in multiple countries can do so under the PCT using
Singapore’s Registry of Patents as the receiving office.

 

Once registered, the patent can be infringed. To determine infringement,
the courts compare both products and processes. It will not be considered an
infringement if the act:

 

                               
i.           
Was done privately for non-commercial purposes

                             
ii.           
Was done for experimental purposes

                           
iii.           
Relates to the extemporaneous preparation of
medicine

 

If the product or process is found to infringe a patent, the
court can order damages and an injunction on the use of the infringing product
or process.

 

2.      COPYRIGHT
LAW

 

Singapore’s Copyright Act protects original
works as varied as novels, computer programs, films, paintings, sheet music and
performances. It does not include ideas, procedures, methods, discoveries
because it is the expression, not the underlying idea or discovery, which is
covered. The author, or owner, of copyrighted material has the exclusive right
to publish, perform, broadcast or adapt the work. He or she can assign all or
part of the rights to others, so long as the agreement is in writing. He or she
can also license the work to others; the license need not be in writing and can
be exclusive or non-exclusive. The protections Singapore affords through
copyright and the length of those protections varies by the type of work it is.
To see the specific provisions, see here. In general, copyright ownership
belongs to the person who created the work. However, works created during the
course of employment may be owned by the employer if the terms of employment
provide that. Commissioned works belong to the individual or group that
commissioned them.

 

In contrast to patents, there is no registration process for
copyrighting in Singapore. The copyright begins when the work is created;
simply having the idea is insufficient. In a dispute over ownership of a work,
a person must show that he or she created it first. To document this, authors
sometimes mail a copy of the work to themselves or an attorney and keep it
sealed in the envelope with a postmark. Using the familiar © symbol on a work
signifies that a copyright exists, but failing to use the symbol does not
abrogate the owner’s rights.

 

A copyright is infringed if anyone — apart from the owner —
reproduces, publishes, performs, adapts, broadcasts, copies or shows the work.
In addition to this “primary infringement,” there is also a “secondary
infringement” if a person:

 

                               
i.           
Imports, sells or exhibits something the
infringer know or should have known was made without the copyright owner’s
consent

                             
ii.           
Falsely attributes the authorship of a work or
the identity of a perform

                           
iii.           
Falsely removes or alters rights management
information electronically attached to a work

 

It is not infringement if the person:

 

                               
i.           
Uses or reproduces a portion of the work for
research or to review or criticize it, such that it falls under the legal
definition of “fair dealing”

                             
ii.           
Includes an incidental portion in a film or program

                           
iii.           
Reads a reasonable-length extract in public

                           
iv.           
Reproduces the work for judicial proceedings,
professional advice or simulcast

 

Civil remedies for infringement include damages, an injunction
and destruction of the infringing work. In lieu of damages, the copyright owner
can take “statutory damages” of not more than S$10,000 per work and S$200,000
in the aggregate. In determining how much statutory damages to award, the court
considers factors, such as:

 

                               
i.           
Was the infringement for commercial purposes

                             
ii.           
How flagrant was the infringement

                           
iii.           
Did the infringer act in bad faith

                           
iv.           
Did the owner suffer a loss or the infringer
accrue a benefit from the infringement

 

Along with civil remedies, a person who infringes a copyright
in Singapore can be subject to criminal penalties. A person can be convicted of
“primary infringement” if he or she willfully and significantly infringes a
copyright for commercial purposes. The punishment can be fine up to S$20,000
and/or a jail term of up to six months. If a person is found guilty of
“secondary infringement,” the fine can be up to S$10,000 per work and S$100,000
in the aggregate and/or the jail term cannot exceed 5 years.

 

 

3.      TRADEMARK
LAW

 

A trademark is a symbol, such as a brand name
or logo, that a business uses to distinguish its goods and services. In
Singapore, you can register a trademark so that it is protected under the Trade
Marks Act. Alternatively, you can seek protection without registering it under
the common law right of “passing off.”

 

Businesses should register their trademark in
Singapore. By doing so, you protect your company’s brand by preventing others
who provide the same or similar goods or services from using your trademark. A
trademark lasts indefinitely so long as you register it every 10 years, and it
can be licensed or sold to others. It will only be revoked if the owner does
not use it within 5 years of registering it.

 

In order to register a trademark, it must satisfy the
following criteria:

 

                               
i.           
It must be distinctive. To be distinctive, it
cannot be descriptive. “Soap” is not a permissible trademark for a soap
producer because it describes the good. Even more ambiguous word, such as
“Royal” or “Breathable”, are deemed too descriptive to be trademarks.

                             
ii.           
It cannot be identical or similar to a trademark
already in use in Singapore, such that it would confuse the public. An
identical mark will be presumed to confuse the public if it is being used by a
company selling the same goods or services. Furthermore, certain marks are so
well-known that they are protected against all copying, even where the other
business does not sell the same goods or services.

                           
iii.           
It cannot be contrary to public policy or
morality.

                           
iv.           
It must be registered in good faith. For
example, an employee cannot register his employers mark in his or her own name.
And, a local distributor of goods cannot register the trademark of a foreign
manufacturer.

 

As with a patent, you register your trademark
through IPOS online or in person. Before registering you will need to know that
your trademark is not already in use by a similar business. To do that, perform
a Similar Mark Search to determine the Nice Classification for your business’
goods and/or services. When registering, you can register for several classes
of goods and/or services at the same time. You can also choose to register only
in Singapore or internationally by designating Singapore through the Madrid
Protocol, WIPO’s international registration system of trademarks. Registration
becomes effective on the date you file your application, even though your
application won’t be processed for approximately 4 months.

 

Once registered, the owner has the exclusive
use of that mark for the goods and services for which it is registered. If it
is a well-known mark in Singapore, the owner has the exclusive us of it even if
it is used in an entirely different industry where there is no concern that the
public will be confused.

 

If a registered trademark is infringed, the
court can award civil damages and issue an injunction. Where a counterfeit
trademark is used, the court can award statutory damages of up to S$1 million
without the owner proving any actual loss. In addition, the owner can pursue criminal
charges against a trademark infringer if that infringer intended to use a
counterfeit trademark to confuse customers. Criminal penalties include a fine
of up to S$100,000 and a jail term of up to 5 years.

 

Even if a business does not register a particular
trademark, it may be protected in two ways. First, Singapore honors the common
law right of “passing off,” which protects a trademark from others pretending
that their goods or services are that of the trademark owner. Passing off
covers a wide range of trademarks from product packaging to the unauthorized
use of celebrity names and likenesses. The criteria for protection under the
passing off doctrine is:

 

                               
i.           
Protectable Goodwill: the product, person or
business must have an established public reputation.

                             
ii.           
Misrepresentation: the offending mark is
sufficiently similar that others will be deceived.

                           
iii.           
Damage or to Goodwill: actual damage or the real
likelihood of damage in the form of diluting the trademark owner’s goodwill in
the marketplace.

 

If the trademark is found to have been
infringed, the owner can get damages or an injunction.

 

Furthermore, Singapore has created a
statutory protection under the Trade Mark Act for foreign businesses that are
well known in Singapore (such as Coca Cola or Apple). Without registering their
trademark, they can still avail themselves of the rights and remedies under
that Act.

 

4.      OTHER
TYPES OF IP

 

Singapore recognizes other types of IP, such
as trade secrets and industrial designs. This article will not cover these
topics, but if you would like to learn more about the protections provided by
Singapore for these types of IP, please see here.

 

 III.           
Conclusion

 

Singapore
provides one the most robust legal regimes for the protection of intellectual
property rights. World Economic Forum’s Global Competitiveness Report 2016-2017
ranked Singapore fourth in the world and first in Asia for its IP protection
framework. Some of the leading IP-focused companies of the world have selected
the country as their preferred location for R due to these protections.

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