IP Protection in Singapore
Patents
Trademarks
Copyrights
Registered Designs in Singapore
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Patents
A patent is a monopoly right conferred to the owner of an invention to enable him to prevent others from using, copying or making the invention without his consent in the country in which he has obtained patent protection.
Obtaining a Singapore Patent
Singapore has had its own patent registration system since February 25, 1995. Patent applications may be filed in two ways: (i) through a domestic application filed with the Registry of Patents within the Intellectual Property Office of Singapore ('IPOS'), or (ii) through Patent Cooperation Treaty (‘PCT’).
A person who has earlier filed a patent application in a Paris Convention/World Trade Organization (‘WTO’) country may, if he files a patent application for the same invention in Singapore within 12 months from the date of the earlier application, claim a right of priority.
To obtain a patent in Singapore through a domestic application filed with the Registry of Patents, one must submit a patent application to the Registry of Patents. The patent application should contain a patent specification stating the title of the invention, a description of the invention, drawings (if any), an abstract and patent claims. The official filing language is English.
It is an offence for a Singapore resident, without the Registrar’s written consent, to file or cause to be filed a patent application outside Singapore without first filing an application for the same invention in Singapore at least two months before the application outside Singapore is made.
Patentability Requirements
A patent may be granted for an invention which is a product or a process. The invention must satisfy the following conditions:
(a) it is new;
(b) it involves an inventive step;
(c) it is capable of industrial application; and
(d) the publication or exploitation of the invention would not generally be expected to encourage offensive, immoral or anti-social behaviour.
To be new, an invention must not be disclosed publicly in any way any time before the filing date, or the priority date claimed, if applicable.
An invention is regarded as having an inventive step if, when compared to what is already known, it would not be obvious to an ordinary person skilled in the art of the relevant field and must not be anticipated by the state of the art.
To be capable of industrial application, the invention must be useful and have some form of practical application.
An invention of a method of treatment of the human or animal body by surgery or therapy or of diagnosis practised on the human or animal body is not considered capable of industrial application, and hence, is not patentable.
Search and Examination Requirements
The Registry of Patents in Singapore offers three approaches to the search and examination process namely:-
a. Local approach;
b. Foreign approach; or
c. Combination of local and foreign approaches.
(a) "Local approach"
In the local approach, an applicant may request to undergo either:
- a patent search first, followed by examination later, or
- a combined search and examination.
A search report, an examination report or a combined search and examination report will be issued by the Examiner accordingly.
(b) " Foreign approach"
In the foreign approach, the applicant fulfils the requirement for examination by furnishing the Registry of Patents with either:
- the final search and examination results of a corresponding foreign application (only certain jurisdictions are acceptable) or a corresponding international application, or
- a certified copy of the patent granted from a corresponding foreign application.
Under this approach, the applicant does not need to request for local search/examination with the Registry of Patents.
(c) “Combined approach”
In the combined approach, the applicant files an examination request with the Registry of Patents relying on the search results of a corresponding foreign application (only certain jurisdictions are acceptable) or a corresponding international application. A local examination report will then be issued.
It is possible to switch approaches, for instance, by requesting initially for local search and examination but choosing to rely on the final search and examination results of a corresponding foreign application to fulfil the examination requirement.
Grant of Patent
In Singapore, a patent application may proceed to grant even if the requirements for patentability are not met in the final examination results issued by or submitted to the Registry of Patents. The onus is on the applicant to ensure that the patent meets the patentability requirements i.e. novelty, inventive step, and industrial applicability. Hence, the Singapore system is known as a “self-assessing” system.
However, in order for the patent application to be granted, the final examination results issued by or submitted to the Registry of Patents must not disclose an unresolved objection to unity of invention. There is also a requirement for each patent claim proceeding to grant to be related to at least one claim as examined in the final examination results issued by or submitted to the Registry of Patents.
Term of Patent
The term of a patent is 20 years from the filing date. To enjoy this full term, the patent must be renewed before the expiry of the 4th year and every year thereafter. The term may be extended for a period up to 5 years in certain circumstances.
Amendment of Patent Application/Patent
The applicant may amend the patent application voluntarily or in response to examination reports issued before grant. Post-grant amendments are permissible but must be advertised for two months and be cleared of opposition before leave to amend is given by the Registry of Patents. Both pre-grant and post-grant amendments must not disclose any matter extending beyond that disclosed in the application as originally filed. In addition, post-grant amendments must not extend the scope of the protection conferred by the patent.
Exclusive Rights and Infringement
After obtaining a patent and before the patent expires, the proprietor of the patent has the exclusive right to prevent any person from doing any of the following in Singapore in relation to a patented invention:
(a) if the invention is a product, making, disposing of, offering to dispose of, using or importing the product or keeping the product whether for disposal or otherwise;
(b) if the invention is a process, using the process or offering it for use in Singapore when the person knows, or it is obvious to a reasonable person in the circumstances, that its use without the owner’s consent would be an infringement of the patent; and
(c) if the invention is a process, disposing of, offering to dispose of, using or importing any product obtained directly by means of the process or keeping the product whether for disposal or otherwise.
Trademarks
In Singapore, protection of a trade mark can take two forms:
(1) as a statutory right where a trade mark is registered under the Trade Marks Act (Cap 332) (“the Act”) of Singapore; and
(2) at common law under the action of passing off.
Protection under the Act
(1) Registration of a Trade Mark
To obtain statutory protection of a trade mark, the trade mark has to be registered with the Registry of Trade Marks in the Intellectual Property Office of Singapore. Registration can be obtained by filing an application to register the trade mark in Singapore or by way of an international registration designating Singapore under the World Intellectual Property Office’s Madrid Protocol. To achieve registration, the trade mark must constitute a trade mark, is distinctive, and does not conflict with an earlier mark.
(2) Well-Known Marks
Another form of securing protection under the Act is when the trade mark is recognised as a “well-known” trade mark if it complies with the conditions of being a “well-known” trade mark as set out in the Act.
In Singapore, a trade mark will be considered well known if it is well known to a relevant sector of the public in Singapore. In this regard, the proprietor of the well known trade mark is entitled to stop an unauthorised use in the course of trade of an identical or similar trade mark or business identifier:
(a) in relation to identical or similar goods or services, where the use is likely to cause confusion; or
(b) in relation to any goods or services, where the use would indicate a connection between those goods or services and the proprietor, and is likely to damage the interests of the proprietor.
If the trade mark is well known to the public at large in Singapore, the proprietor of the well known trade mark is entitled to restrain by injunction any use in relation to any goods or services which would cause dilution or take unfair advantage of the distinctive character of the mark.
(3) Protection
The protection under the Act gives the owner of the trade mark exclusive rights to the use of the trade mark in respect of the goods and/or services registered. A trade mark is considered to be infringed if there is unauthorised use in the course of trade of an identical/similar mark in relation to identical/similar goods and/or services, where there exists a likelihood of confusion to the public. In the case of an infringement where the marks are identical and used in respect of identical goods or services, there is no need for the trade mark owner to establish that there is a likelihood of confusion by the unauthorised use.
In addition to civil remedies, the registered owner of a trade mark could also take out criminal proceedings in cases of the following infringing acts:
(a) Counterfeiting a registered trade mark.
(b) Falsely applying a registered trade mark to goods or services.
(c) Making or possessing articles for committing offences.
(d) Importing or selling etc goods with falsely applied trade mark.
(4) Dealings with the trade mark
In addition to the exclusive right to the use of a registered trade mark in respect of the goods and/or services registered, the registered owner of a registered trade mark can assign or license the trade mark. A trade mark registration can also be assigned by way of security.
(5) Renewal
A trade mark registration is valid for 10 years from the date of registration and is renewable for further periods of 10 years. In Singapore, there is no requirement to furnish evidence of use to renew a trade mark registration.
(6) Maintenance
To maintain the trade mark as a registered trade mark, apart from renewal of the registration, the trade mark must be put to genuine use in the course of trade in Singapore. Failure to use the trade mark for 5 consecutive years without proper reasons can cause the trade mark registration to be vulnerable for revocation on grounds of non-use.
Protection under Common Law
Under the common law action of passing off, three elements must be established by the trade mark owner to enable him to enforce his rights:
(a) goodwill;
(b) misrepresentation; and
(c) damage.
Goodwill
To establish goodwill, the trade mark owner must show that his trade mark has become distinctive of his goods/services and business. Such evidence would be in the form of long and extensive use and publicity of the trade mark for the relevant goods/services in Singapore
Misrepresentation
The trade mark owner must also establish that the offending mark has been used in such a manner which misleads or confuses the public into thinking that his goods or services are those of the trade mark owner, or are associated with the trade mark owner.
Damage
Damage or a real likelihood of damages to the trade mark owner’s goodwill must also be established. This is usually established by showing a loss of trade to the trade mark owner by virtue of the unauthorised sales. Damage could also be established if there is a dilution of the trade mark owner’s goodwill, ie. when the unauthorised use is in respect of lower quality products or services.
Treaties
Singapore is a member of the Paris Convention, the World Trade Organization, TRIPS and the Madrid Protocol.
Copyrights
The Copyright Act (Cap 63 2006) protects works and other subject matter in Singapore. In Singapore, copyright protection is given to works such as literary dramatic artistic and musical works and to other subject matter such as sound recordings, films, broadcasts, cable programmes and published editions of works. Additionally, copyright protection is available in respect of live performances and rights management information, such as information identifying the author of a work and the terms and conditions relating to the use of the work.
There is no registration system for copyright in Singapore. Copyright arises upon creation. In general, copyright subsists in a work or subject-matter in Singapore if (1) the work or subject-matter was first published or made in Singapore or in a member country of the Berne Convention or the WTO; or (2) the author of the work or the maker of the subject was a citizen or resident of Singapore or of a member country of the Berne Convention or the WTO at the time when the work was first published or made.
Ownership
The ownership of the copyright in a work or other subject matter is vested in the person who creates it. The Copyright Act gives the owner the exclusive right to do certain acts, according to the type of work, such as in the case of a literary dramatic or musical work
* to reproduce the work in a material form;
• to publish the work if the work is unpublished;
* to communicate the work to the public;
• to perform the work in public;
• to make an adaptation of the work or to do any of the above in relation to an
adaptation;
The owner’s rights are also infringed by such acts as
• importing for purposes of sale, offer for sale, distributing and exhibiting in public
of any article where the infringer knows, or ought reasonably to know, that the
article was made without the copyright owner’s consent;
• falsely attributing the authorship of a work or the identity of the performer of a
performance; and
• falsely removing or altering the rights management information electronically
attached to a work.
The Act also provides for certain permitted acts which do not constitute copyright infringement and this includes study and research as well as specific acts which do not constitute copyright infringement such as
• reproduction for purpose of judicial proceedings, professional advice or
broadcasting;
• making a backup of a non-infringing copy of a computer program if it is made for
the sole purpose of being used in lieu of the original in the event that the original
is lost, destroyed or rendered unusable;
• inclusion of works in collections for use by educational institutions
• reading or recitation of an extract of a reasonable length from a published literary
or dramatic work in public.
Like the other intellectual property right, copyright can be licensed assigned or transferred in different ways to another person in whole or in part of the copyright period or by geographical area.
Duration
The duration of the copyright in a literary, dramatic or musical work, or in an artistic work other than a photograph, subsists for the life of the author plus 70 years after his death.
In the case of a sound recording and cinematographic film, copyright subsists until the expiry of 70 years after the expiry of the calendar year in which the recording or film was first published.
The duration of copyright protection for a broadcast and cable programme is 50 years from the end of the calendar year in which the broadcast was made or the programme was first included in a cable programme service.
The duration of copyright protection for a published edition of a work or works is 25 years from the expiry of the calendar year in which the edition was first published.
Infringement
The copyright owner can sue an infringer for infringement of his copyright and the remedies available includes an injunction, either damages or an account of profits, an order for delivery up and/or disposal of infringing articles in relation to the copyright.
In lieu of damages or an account of profits, the copyright owner can elect for an award of statutory damages, for which the court can grant not more than $10,000 for each work or subject matter in respect of which the copyright has been infringed but not more than $200,000 in the aggregate, unless the owner proves that his actual loss from such infringement exceeds $200,000.
In awarding statutory damages, the court shall have regard to a number of factors, including
• the nature and purpose of the infringing act including whether it was of a
commercial nature or otherwise;
• the flagrancy of the infringement;
• whether the defendant acted in bad faith;
• the need to deter other similar infringements;
• any loss that the plaintiff has suffered or is likely to suffer by reason of the
infringement; and
• any benefit shown to have accrued to the defendant by reason of the
infringement.
Registered Designs in Singapore
Introduction
Industrial designs are protected under the Registered Designs Act (Cap 266) modelled after the UK Registered Designs Act 1949. Unregistered designs are, to a limited extent, protected under the Copyright Act (Cap 56).
Prior to coming into effect of the Registered Designs Act on 13 November 2000, designs registered under the UK Registered Designs Act 1949 were deemed to be registered in Singapore.
Registrability
A design is defined as the features of shape, configuration, pattern or ornament applied to an article by an industrial process. To qualify for registration, the design must be new. A design is not new if it has been registered previously for any article, or published anywhere for any article before the application to register it.
The following designs are not registrable designs:
- Method or principle of construction
- Features of shape or configuration of an article dictated solely by the function of the article
- Features of shape or configuration of an article dependent upon the appearance of another article of which it is intended to form an integral part
- Features of shape or configuration of an article which enable it to be connected to, placed in, around or against, another article so that either article may perform its function
- Design contrary to public order or morality
- Computer program or layout-design of an integrated circuit
Applying for registration
An application must include:
- A Statement of novelty
- Representations of the design
- A declaration of priority, if priority is claimed under the Paris Convention
- A Singapore address for service
- The Locarno class(es) of the article(s) to which the design is applied
An application is only examined on formalities and the applicant will be given an opportunity to correct any non-compliance. The Registrar does not conduct any searches to ensure that the design is new although the Registrar may refuse an application if, on the face of the application, the design is not new or is not registrable for any other reason.
Once the Registrar determines that an application satisfies the formal requirements the application shall be registered and published in the Designs Journal.
Term of registration
A design is registered as of the date of application and the registration date is deemed to be the application date. The term of registration under the Registered Designs Act is 5 years and may be extended for a second and third period of 5 years, ie, total of 15 years from the registration date.
A design registered in the UK before and subsisting on 13 November 2000 is deemed to be a registered design under the Registered Designs Act. The term of registration may similarly be extended for additional periods of 5 years, but up to a total of 25 years from the registration date in the UK.
Late renewal is available within 6 months from the expiry of a registered design.
Ownership
A designer is by default the owner of a design. A designed generated by computer where there is no human designer, the person by whom the arrangements necessary for the creation of the design is the designer. A design created on commission is owned by the person commissioning the design. A design created in the course of employment of an employee belongs to the employer. Notwithstanding the above, ownership may be determined in accordance with an agreement.
A registered design is personal property and may be assigned or transmitted as any other personal property. An assignment is not effective unless it is in writing and signed by or on behalf of the assignor.
In the case of co-owners of a registered design, each co-owner shall be entitled to an equal undivided share. Subject to any agreement, each co-owner may do in relation to the design for his own benefit and without the consent or need to account to the other co-owners. However, a co-owner may not assign any interest in or grant a licence for the use of the design without the consent of the other co-owners.
The assignment, grant of a licence/sub-licence, grant of a security interest, the making or an assent by personal representatives and order of a court or competent authority transferring a registered design are all registrable transactions. Unless registered, a registrable transaction is ineffective against a person acquiring a conflicting interest in the registered design in ignorance of it. An assignee or licensee is not entitled to damages or account of profits for infringement of a registered design occurring before the assignee or licensee is registered.
Rights of owners
The registered owner of a design has the exclusive right to
- make in Singapore or import into Singapore for sale or hire, or for use for the purpose of trade or business; or
- sell, hire, or offer or expose for sale or hire, in Singapore
any article in respect of which the design is registered, and to which that design (or one not substantially different) has been applied.
Infringement
A registered design is infringed by any person who does anything which is the exclusive right of the registered owner without his consent. However, the following do not infringe a registered design:
- doing any act for private non-commercial purpose
- doing any act for the purpose of evaluation, analysis, research or teaching
- reproduction of a feature of the design which is left out of account in determining whether the design is registrable
- import, sale, hire, or offer or exposure for sale or hire of any article (to which the design is applied) which has been placed on the market anywhere by or with the owner’s consent
A person who does an act in good faith (or makes effective and serious preparation to do such an act) in good faith in Singapore before the registration date of a design has the right to continue to do the act.
Remedies for infringement include an injunction, either damages or account of profits, order for delivery up and order for disposal.
A person who is aggrieved by a threat of infringement proceedings for a registered design (other than for making or importing anything) may obtain a declaration that the threat is unjustified, an injunction against continuance of the threat and damages for loss sustained by the threats, unless the person making the threat can prove infringement and validity of the registered design.
Revocation
Any interested person may apply to the Registrar or the Court to revoke a registered design on any of the following grounds:
- The design was not new at the time of registration
- Any other ground on which the Registrar could have refused to register the design
Revocation takes effect from the date of registration.
Revocation may also be requested if a corresponding design in relation to an artistic work in which copyright subsisted at the time the design was registered and the period of registration of the corresponding design had expired when the copyright in that work expired. Revocation on this ground takes effect from the date on which the corresponding registered design.
An application for revocation must be made to the Court if proceedings concerning the design are pending in the Court.
International designs
Singapore is a member of the Hague Agreement (Geneva Act). As such, an international application may designate Singapore.
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