Octavio Espejo Hinojosa

Partner Director, Patent and Technology Practice


Industrial Property and the importance of protecting your creations


Industrial Property and the importance of protecting your creations

Starting the year 2022, the sentence that presupposes that reality surpasses fiction is more valid than ever. The scenarios that the world has faced during the last two years are unprecedented, perhaps only a few hints can be found in cinema or literature of apocalyptic intensity.

Historically, the desire to satisfy human needs has driven development. It is also true that, in times of crisis, innovation finds fertile ground for the flourishing of new solutions.

Industrial Property is the tool that creators have to protect innovative developments, by means of which they obtain rights that allow them to capitalize on ideas, differentiate themselves from competitors and defend themselves against third parties.

The most popular legal concept in this branch of law is Trademarks, which are defined as distinctive signs that allow a product and/or service to be differentiated from others of the same kind or nature in the market. This is why the natural thing to do when starting a business is to seek trademark registration. In this sense, it is always necessary to align the intangible asset protection strategy with the business plan of the project.

The first step is very logical, it is necessary to search for other similar signs that could be protecting products and/or services of the same class. It is not possible to have two very similar trademarks registered for the same purposes. Subsequently, with the certainty of not infringing the rights of third parties, protection for the trademark in question can be sought.

It is advisable to carry out this process as soon as possible before any competitor intends to benefit from the prestige that the brand is acquiring. It is important to point out that the general principle of law applies: “first in time, first in right”, on this basis whoever anticipates the filing of a trademark application has priority to obtain registration.

In the field of patents, governments grant the owner the right to prevent third parties from manufacturing, using, selling, offering for sale, or importing the patented product or the product obtained from the patented process, without consent.

In exchange for this territorial and temporary right valid for 20 years, the owner must make the knowledge public so that it serves as a platform for the development of more science and technology, generating a virtuous circle in innovation.

It is important to highlight that it is not necessary for the technology to be disruptive in a technological field, the basic requirements for obtaining a patent are that the matter is novel and that it implies an inventive activity, the latter is synthesized in that the development is not obvious to an expert in the field. Therefore, even small improvements to existing technologies that help to resolve a technical problem more efficiently are eligible for protection.

In this case, it is important to consider that, if the invention is disclosed before the filing of an application for patent protection, the publication of the creator may constitute a precedent that limits the possibility of obtaining the right. So, it is always recommended that the strategy begins with the evaluation of the patentability of the development. Unfortunately, many inventions lose the opportunity to be monetized due to prior ignorance of the rules of the protection system.

In conclusion, in times of constant change and uncertainty, Industrial Property is an ally for companies. The costs inherent to the protection of creations are part of the investment for entrepreneurship, the success of projects that find new solutions in the present and unprecedented reality also depends on the protection strategy.

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