Technological advancements are reshaping real estate, necessitating a deeper understanding of intellectual property issues within the sector. Excel V. Dyquiangco discusses the critical role of IP in navigating these shifts and maximizing opportunities for development and competitive advantage. 

Real estate and intellectual property may be viewed as two distinct industries, each with its own regulations, principles and market dynamics. However, the convergence of these two fields is creating a fertile ground for innovation and strategic growth. This intersection is not merely a byproduct of modern business practices but a reflection of the increasing complexity and interconnectedness of the global economy. For example, smart buildings have made integrating proprietary systems and patented technology necessary, increasing the dependence of real estate development on intellectual property issues. Moreover, trademarks and copyrights are increasingly important for branding and marketing real estate assets, significantly impacting how properties are seen and valued in the market. 

As technology advances and globalization accelerates, the strategic management of intellectual property within the real estate sector will become even more crucial, driving innovation and offering new pathways for competitive advantage. 

According to Namrata Pahwa, an advocate at the Chambers of Namrata Pahwa in New Delhi, in the competitive world of property development, safeguarding innovative strategies and proprietary information in real estate is paramount.  

“The concept of trade secrets becomes particularly relevant, as it encompasses a range of practices, methods and confidential information that, when kept hidden from competitors, can provide a significant business edge,” she said.  “And just like any other business, real estate developments can benefit from trademark protection for their names, logos or slogans. Both IP and real estate can have significant financial value. Intellectual property rights can represent valuable assets for companies, providing them with competitive advantages and revenue streams. Similarly, real estate properties have tangible value, either for their use or potential for development and appreciation.” 

She added that owners of both IP and real estate can monetize their assets through various means. “For example, real estate owners can generate income through renting or leasing their properties, while owners of intellectual property can earn royalties through licensing agreements or by selling their IP rights,” she said. “Overall, understanding the relationship between IP and real estate is important for developers, investors and businesses looking to maximize the value of their assets and protect their creative works.” 

Building names 

One of the most crucial parts to consider in real estate is selecting a building name. Pahwa said that the chosen name should not already registered or in use by another party in the real estate sector.  

“You can search the trademark databases maintained by the relevant trademark offices, such as the United States Patent and Trademark Office (USPTO) in the U.S. or the European Union Intellectual Property Office (EUIPO) in the EU,” she said. “Real estate falls under Class 42 of the Nice Classification. Additionally, conducting internet searches and consulting with a trademark attorney can help uncover any potential conflicts.” 

She recommended choosing a name that stands out and isn’t generic to increase the chances of approval and brand recognition and avoid choosing a name that is not descriptive of its goods and/or services. 

“Once you’ve determined that the building name is available for trademark registration, file a trademark application with the relevant trademark office,” she said. “The application should include detailed information about the building name, its intended use and the goods or services associated with it. After filing the trademark application, monitor its progress through the registration process. The trademark office will examine the application to ensure that it meets the necessary criteria for registration, including distinctiveness and non-conflict with existing trademarks. If any objections or challenges arise during the examination process, your trademark attorney can help address them effectively.” 

According to Pahwa, the most important step overall is enforcement. She noted that IP owners can further protect their rights and maintain the distinctiveness of their brand if they regularly monitor the market and take prompt action against any unauthorized use of their trademark. 

Architectural designs 

Second is its architectural designs. Mudit Kaushik, an advocate at Delhi High Court, said that architectural designs can be safeguarded through both copyright and trademark protection.  

“Copyright law protects the artistic expression of the architectural design, shielding it from unauthorized reproduction, distribution or adaptation as soon as it is fixed in a tangible medium like plans or computer-aided design (CAD) files. However, copyright does not extend to functional elements or standard building features. Registering architectural works with the appropriate copyright office is highly recommended to establish legal ownership and facilitate infringement remedies. Additionally, trademarks can protect distinctive architectural designs that serve as source identifiers for the architect or developer,” he said.  

In protecting architectural designs under copyright law, Kaushik emphasized the importance of maintaining comprehensive documentation, including dated sketches, drawings and CAD files. He also urged developers to prominently display copyright notices, such as the copyright symbol (©), year of creation and copyright owner’s name, on all relevant materials. It’s also crucial to have confidentiality or non-disclosure agreements (NDAs) when sharing designs with third parties to prevent unauthorized use or disclosure. As for trademark protection, he recommended consistently using distinctive architectural designs and prominently displaying them to establish source recognition. Registering trademarks with the relevant trademark office can strengthen legal rights and enforcement options. 

“Careful drafting of licensing agreements and contracts is vital when granting others the right to use or modify architectural designs. These agreements should clearly define the scope of use, limitations and any royalty or payment terms for both copyrights and trademarks. Regular monitoring for potential infringement is advisable, as prompt action can protect the design and deter future violations. Consulting qualified IP attorneys can provide valuable guidance on understanding rights, ensuring compliance with relevant laws and developing effective strategies for safeguarding architectural designs through copyrights, trademarks and other IP protections,” he said.  

But when acquiring or developing properties with pre-existing trademarks or copyrighted architectural designs, it’s essential to conduct due diligence. Investigating, researching and complying are the three most critical aspects to look into when developing properties with pre-existing IP, according to Pahwa.  

“At the outset, one must identify the owner of the trademark associated with the property. This could be the previous owner, architect or a separate entity entirely. The more thorough due diligence you do in the beginning will save more time and energy later. This includes reviewing relevant documentation, such as property deeds, construction plans and licensing agreements, to determine the extent of existing intellectual property rights. One must always respect someone else’s IP,” she explained. 

It is also imperative to understand the extent of copyright protection. Does it cover the entire design, specific elements or just the blueprints? This will determine the level of permissible modification or redesign during development.  

“Now comes the time to recognize usage rights,” said Pahwa. “Negotiation might be needed to secure permission for continued use of the name for marketing or branding purposes. One must obtain the necessary permissions. If significant changes are desired, negotiate with the copyright owner to secure a license to modify the design. This could involve upfront fees or ongoing royalties. Consider the impact of pre-existing trademarks on the property’s brand identity and marketing strategy. Developers should assess whether incorporating existing trademarks enhances the property’s value or presents challenges in branding and positioning.”  

“By addressing these considerations proactively and seeking professional guidance, investors and developers can mitigate risks and maximize the value of properties with pre-existing trademarks or copyrighted architectural designs,” she added.  

Addressing new challenges 

With the rise of virtual real estate and the integration of technology in built environments, how are intellectual property laws evolving to address new challenges such as virtual property rights and augmented reality experiences within real estate developments? 

Kaushik said: “The rise of virtual real estate and the integration of augmented reality (AR) in built environments are necessitating significant changes in intellectual property laws to address these emerging challenges. Virtual property rights have gained importance as platforms like Decentraland and The Sandbox create robust digital economies around virtual land and properties. Copyright laws now extend to digital creations, protecting virtual architectural designs and 3D models from unauthorized use and reproduction. Similarly, trademark laws are adapting to allow the registration of trademarks for virtual properties, thus safeguarding the brand identity of virtual real estate developers and preventing misuse in digital spaces.” 

“Augmented reality further complicates the landscape by overlaying digital content onto physical spaces, enhancing real estate experiences. Innovations in AR technology are being protected through patents that cover display technologies and interaction methods, securing developers’ rights. Copyright protection also extends to digital content used in AR, such as virtual walkthroughs and interactive maps, preventing unauthorized replication. Additionally, data privacy laws like the General Data Protection Regulation (GDPR) set strict guidelines on data collection and usage, addressing privacy concerns associated with AR applications in real estate. These legal adaptations ensure that IP laws evolve to protect innovations and investments in the rapidly expanding sectors of virtual real estate and augmented reality,” he added.