Having a strong Intellectual Property Rights (IPR) strategy is vital for your business when expanding into new markets such as the ASEAN region (Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam). This is a fast-growing region in the global economy and attractive to many innovative European SMEs. There are some important IPR points to consider before entering the ASEAN market.
Having legally enforceable rights over the use of inventions or other creative works confers a right to exclude others from their use. Securing your IP rights will help you to prevent and enforce against infringers profiting from your innovation or brand by passing it off as their own. IP falls into the categories of registrable and non-registrable IP rights.
Registrable IP rights are territorial, which means they have to be claimed and asserted in each country individually. Registered IP in another country is not automatically recognised across the ten countries of the ASEAN region. So it is strongly recommended that you register your IP assets in the country in which you wish to operate before entering the market.
Copyright protection is generally provided for written, oral, musical, dramatic, choreographic, artistic, architectural, photographic, cinematographic, audio-visual, graphic works and computer software. While you do not need to register your copyright for protection, you may voluntarily register to prove ownership in some ASEAN nations such as Indonesia, Malaysia, Thailand and Vietnam.
A trademark allows consumers to distinguish goods or services of one producer from those of another. You can register either by filing an application directly at the national administrative offices of respective ASEAN countries, or by filing an application at the World Intellectual Property Organisation (international application). If you are making an international application, your trade mark may have to be registered in your home country before requesting the extension of the trademark to an ASEAN country.
There are varying patent systems across the ASEAN region; most countries cater for the equivalent of invention patents, which are granted for innovations in the field of technology that are new and inventive over other existing products on the market. Many of the ASEAN countries, such as Vietnam, provide for utility model patents (similar to Utility Patent systems in many European countries) which are generally granted more quickly and require a lesser degree of inventiveness. The original shape, pattern, colour, or a combination of these in an object, can also be protected by design patents some in ASEAN countries.
There are intellectual property factsheets for each South-East Asian nation from the IPR Helpdesk website.
Nearly all businesses possess non-registrable forms of intellectual property - trade secrets. So a sound internal strategy to prevent them from being accidentally leaked or stolen is essential. If publically divulged, trade secrets enjoy no legal protection, but providing this does not happen they can in theory remain secret (and hence, protected) for an infinite term. (The recipe for Coca-Cola is perhaps the classic example of a well-kept trade secret; had the company patented the formula, it would have become public knowledge as soon as the patent had expired.) Trade secrets are not currently recognised by all IPR systems in the ASEAN region, but there are practical steps your business can take to keep your crucial information secret.
A holistic IPR protection strategy
The best way to prevent IP-related issues is to use a layered, holistic IPR protection strategy, which includes protection both by registration of your registrable rights and other methods such as contractual protection (confidentiality agreements, IP protection clauses in employee agreements) and internal security measures (limited access to certain work areas, etc.).
Want to learn more?
Enterprise Europe Network together the South-East Asia IPR SME Helpdesk project will run a workshop in London on Tuesday 10 April 2018 on how to Protect your IPR in Malaysia and Singapore.
The South-East Asia IPR SME Helpdesk project is co-funded by the European Commission's Directorate-General for Enterprise and Industry under the Competitiveness and Innovation Framework Programme (CIP). The Helpdesk provides support for European SMEs to both protect and enforce their IPR in or relating to South-East Asia. It offers free information and services in the form of jargon-free, first-line, confidential advice on intellectual property and related business issues, plus training, materials and online resources.