Monday, August 4, 2014

Essentials of Intellectual Property and Copyright Laws in Oman

Oman has in recent years made a concerted effort to provide comprehensive laws for the protection of intellectual property. This is demonstrated by the Industrial Property Law promulgated by Royal Decree 67 of 2008 (as amended by Royal Decree 131 of 2008) (the “IPL”). The IPL repealed Royal Decree 38 of 2000 and includes measures to protect owners of trademarks, patents and topography as well as measures to protect against unlawful competition. In addition, the Law for the Protection of Copyright and Neighbouring Rights (the “Copyright Law”) promulgated by Royal Decree 65 of 2008 was established to protect creative works of literature, arts and science and repealed Royal Decree 37 of 2000. This article provides a brief overview of the essential elements of both the IPL, specifically concerning trademarks, and the Copyright Law, as well as the penalties for non-compliance.

Trademarks under the IPL

The IPL aims to protect intellectual property and in broad terms a mark is something that distinguishes a good or service of a particular establishment from another establishment. More specifically, the IPL provides that a mark may be distinguished by its “words (including personal names), drawings, letters, colours, group of colours, numbers, shape of goods, their canning, three-dimensional pictures, geographical indicators, voices, fragrance or taste.”

The owner of a registered trademark shall have protection in the form of:

  1. The right to prevent others from using, without their approval, identical or similar marks including trade names and geographical indicators of commodities or any services related to those which have been registered under the trademark, if any confusion is likely to arise on account of such use, subject to the provisions of the IPL.

  2. The right to bring an action against a person infringing the trademark or using it without his approval, or involvement in acts that make an infringement of the trademark possible.

In order to benefit from the IPL and ensure its protection, the owner should register its trademark and be mindful of the following:

  • a registered trademark will be protected for ten years; and
  • its ownership may not be challenged if it has been used by the person who has registered it continuously for at least five years from the date of registration.

In addition to protecting a brand, the IPL also operates as a mechanism to protect consumers from being misled by counterfeit products. As a result, consumers are safe in the knowledge that when they purchase a certain product, the product will in fact be the brand the consumer had required and not another product that is similar but not identical to the brand they had hoped to purchase. A brand conveys to consumers an assurance as to the nature of the product or service they will receive; therefore the IPL protects a brand’s reputation. If a brand is copied and used by another company, there is a risk that the brand name could be damaged if the company using the brand is supplying inferior quality goods or services.

The Copyright Law

The Copyright Law protects any original artistic or scientific work automatically upon their creation and includes books, articles, computer programmes, lectures, paintings, sketches and musical compositions to list a few examples. Unless otherwise agreed, all those who participate in the creation of a joint piece of work shall be equally considered as the rightful owners of such work.

The Copyright Law grants the owner of the copyright (1) economic rights; and (2) moral rights. The duration of the copyright protection in Oman varies dependent upon the type of work and is detailed extensively throughout Articles 26 through 33.

Economic Rights

As the term suggests, economic rights allow the owner of the copyright to be compensated in money or in kind for the transfer of their rights to another party who is authorised to use such rights. Examples of such economic rights include but are not limited to the reproduction, broadcasting, public performance or translation of his or her work.

Moral Rights

Moral rights include:

  1. the right of the author for attribution as the author of the work in the manner of his choice; and
  2. the right of the author to object to any distortion, modification, mutilation or other derogatory action in relation to his work that could prejudice the author’s honour or reputation.

Although moral rights prohibit the use of copyrighted works without the consent of the owner of such works, there are some exceptions to this which include as examples: (a) quoting paragraphs from a protected work lawfully made available to the public; (b) using the work in an educational institution for clarification or teaching purposes; and (c) reproducing the work to the extent justified by the purpose and without the purpose of direct or indirect financial gain.

Penalties for non-compliance regarding trademarks

Without prejudice to a harsher penalty stipulated in any other law, the IPL states that deliberate infringement at a commercial level of an industrial property right shall be punishable by:

  1. imprisonment for a minimum period of three months up to a maximum of two years; and/or
  2. a minimum fine of RO 2,000 and a maximum of RO 10,000.

In the case of repeated infringement, the penalty will be doubled.

Additionally, the violation by a litigant of an order issued by the court concerning an action pertaining to the application of the IPL is punishable by:

  1. imprisonment for a minimum period of seven days and a maximum of one month; and/or
  2. a minimum fine of RO 100 up to a maximum of RO 1,000.

Furthermore, litigants, their lawyers, experts and other officials of the judiciary who have violated an order of the court for the protection of confidential information are also liable.

Penalties for non-compliance of the Copyright Law

Under the Copyright Law, several civil penalties exist towards anyone convicted of committing acts of infringements upon property owned by the rights holder requiring them to provide financial compensation.

Additionally, the Public Prosecution may enforce criminal procedures and penalties against those who violate the provisions of the Copyright Law. The criminal penalties for such violations include:

  1. imprisonment from a minimum period of three months up to a maximum of three years; and/or
  2. a minimum fine of RO 2,000 up to a maximum of RO 10,000.

In all cases, the punishment shall be doubled for repeating the offence.

Furthermore, any person shall be punished by imprisonment from a minimum period of seven days up to a maximum of one month, as well as monetary fines from a minimum of RO 100 up to a maximum of RO 1,000, or by either one, if that person violates an order issued by the court relating to information on persons causing infringement of the Copyright Law.