Notarial Acts and Intellectual Property

There is a concept known as “poor man’s copyright” where the creator of some work deals with the work in such a way that its date of creation or first use can be traced in the event that authorship may be disputed in the future by a third party. This is intended to evidence that the work was in fact created or used by the original creator or author before a third party claims to be the rightful owner or creator of the intellectual property.

A classic example is an author who mails a copy of his written work to himself and does not open the parcel; in the event that a third party plagiarizes the work or attributes its own authorship to it, the parcel can then be inspected: the date stamp along with the contents are then adduced as evidence that the work was first created by the original author at an earlier date. Unfortunately, the risk that this “evidence” can be easily manufactured or tampered with means that this kind of proof of first authorship is seldom held as conclusive evidence in support of the original author’s case.

However, it is not inconceivable that an individual may have some form of intellectual property and not be in a position to register it according to the ordinary processes associated with trade marks, trade secrets, patents or copyrights. This difficulty may arise because of momentary financial constraints or because he is still in the process of obtaining advice on the proper processes involved. Given the continued internationalisation of trade and commerce, it is easy too imagine that an individual may want to urgently create at least some basic protection over his intellectual property so that he can legitimise his claim of ownership if a future dispute were to arise before it was properly registered overseas.

In this situation, it is possible that a notary public could – depending on the nature of the intellectual property – provide his services so that the trade mark, trade secret, patent or copyright is notarised under a notarial certificate which would attest to the existence of the intellectual property at the date of the notarial act. It may be necessary for the public notary to make additional preliminary inquiries before the notarisation is provided. The certification would generally and ordinarily take the form of a declaration with any relevant exhibits, where that declaration is signed by the person seeking the protection of his property and witnessed by the notary.

This document, once it has the necessary apostille or legalisation applied, may be tendered before a foreign court, tribunal or administrative body as evidence of the facts as asserted in the declaration, however – and this cannot be emphasised strongly enough – the notarisation alone is no guarantee that the intellectual property is secured and protected under the legal provisions of the foreign jurisdiction. All that the notarial act would evidence is that a person appeared before the notary and asserted a claim, and the basis of that claim with respect to certain intellectual property, and a description of that property, only. The notarisation will not provide any further force to the individuals’ claim in the even of a future dispute.

It is therefore absolutely imperative that anyone seeking to have their intellectual property secured through the use of a notarial act or certificate not rest on this as the ultimate form of protection – it is no final protection and only provides a preliminary basis of a claim that could evidence original ownership over the intellectual property. The notarisation will at best be an interim form of protection before the trade mark, trade secret, patent or copyright is properly registered under the relevant IP legislation.

It should be further noted that notarial acts and certificates produced in common law jurisdictions, such as Australia, may not have the same authoritative force in other jurisdictions, such as those of latin states or civil law countries. While the local notarisation may provide persuasive weight behind a claim of authorship overseas, other administrative or legal processes will likely be necessary before the property is protected at law in that other jurisdiction.

Those who want to secure their intellectual property right should initially seek the services of a patent attorney or IP lawyer before making any decisions with respect to their personal or business assets.

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