Intellectual Property Law of Singapore

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.

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, Market Readiness Assistance (MRA) offered by International Enterprise Singapore aims to help Singapore-based companies defray a portion of costs (including IP costs) when expanding outside Singapore. The programme provides funding of up to 70% of costs for eligible activities (capped at S$20,000 per company per new market from 1 April 2020 to 31 March 2023), including filing of foreign IP applications.

The MRA incentive is 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.

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.

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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.

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. You can also learn about the details of IP licensing. 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:

1. New: Should not be publicly know anywhere in the world.
2. 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.
3. 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:

1. 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.
2. 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 or processes. It will not be considered an infringement if the act:

1. Was done privately for non-commercial purposes
2. Was done for experimental purposes
3. 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.

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, that 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. You can also see the specific provisions.

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. All types of commissioned works belong to creators by default. However, this default ownership can be negotiated between the parties.

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. Anyone who uses literary, dramatic, musical, or artistic works, or performance in public (including online) must identify its creator or performer clearly (even if they do not own the copyright to the work). This obligation does not apply if the creator’s or performer’s identity is not known or when the work or performance is to be used for exempted purposes.

In addition to this “primary infringement,” there is also a “secondary infringement” if a person:

1. Imports, sells or exhibits something the infringer know or should have known was made without the copyright owner’s consent
2. Falsely attributes the authorship of a work or the identity of a perform
3. Falsely removes or alters rights management information electronically attached to a work

It is not infringement if the person:

1. Uses or reproduces a portion of the work (i.e. sound recording, a film, a broadcast, a cable program) for research or to review or criticize it, or for the purpose of reporting news in a way that it falls under the legal definition of “fair use”
2. Includes an incidental portion in a film or program
3. Reads a reasonable-length extract or use artistic works in public places
4. Reproduces the work for judicial proceedings, professional advice or simulcast
5. Uses a copyrighted work for educational purposes
6. Uses a copyrighted work for data analysis

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:

1. Was the infringement for commercial purposes
2. How flagrant was the infringement
3. Did the infringer act in bad faith
4. 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.

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 (Section 5):

1. 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.
2. 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.
3. It cannot be contrary to public policy or morality.
4. 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 (read Section 6),” 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:

1. Protectable Goodwill: the product, person or business must have an established public reputation.
2. Misrepresentation: the offending mark is sufficiently similar that others will be deceived.
3. 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.

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.