Intellectual property has become a household issue. From the boardroom to internet chat rooms, and even in gossip columns, intellectual property is a hot topic. But what exactly is it? How does it affect you? If you make it big, isn’t this something your lawyers can just take care of? Or you might modestly conclude that you are not an intellectual, you do not have any property, and therefore there is no way that understanding intellectual property would matter to you.
It matters! Understanding intellectual property can help you protect an incredible creation and parlay it into a valuable asset that you can exploit, license or sell. Without a grasp of intellectual property, you may unwittingly give your creation away. Adapting a few safeguards can make the difference between building a business and regretting missed opportunities. And when intellectual property is approached as a whole, it becomes a reliable tool available to you and your business: a resource that you can put to work.
The internet and other technological advances have given our generation immediate access to endless information. Corporate downsizing has introduced more individual entrepreneurs and consultants to the marketplace and the global economy makes it essential to have knowledge and tools available to remain competitive. Cultural and business climates have evolved to a point where many people are sophisticated enough to know their creation is entitled to valuable intellectual property rights. But you may be unsure as to how to protect these rights. What’s the difference between a patent and a design right? A trade mark and a copyright? What’s a trade secret, and how does it differ from a trade name? What about domain names? These categories might sound like far-off places and all you have is a blurry out-of-date road map to find your way. But when all these areas of intellectual property are understood and approached holistically, you will have the power to make good business decisions and get the most out of your creations.
The basics
There are two golden rules that will assist you greatly in understanding the fundamentals of intellectual property rights.
Rule number one: first in time, first in right. The one who is first past the post – whether it is tortoise or hare – wins. This holds true in fairy tales and in real life. In the past, for example, water laws operated on the same basis: the individual who first actively diverted water from a stream for beneficial use had the first right to use the water. Many intellectual property cases turn on proving who was the first to establish a specific intellectual property.
If you are the first person to file a patent application on a new invention, such as a uniquely engineered safe-seal bottle top or a design right application on a uniquely designed lamp, or if you are the first to use a trade mark such as a cool name or hip logo for your product or service, or first to write down words for a new song which have been going through your head, or you have designed a new website in source code, you are in a far better position to protect the intellectual property in your creation and win any legal battles along the way.
Rule number two: ideas alone are not protectable. We all have ideas and dreams. But that doesn’t put money in the bank. When you come up with a specific idea, lay it out and do something with it. The result might be a painting, a play, an improved way to use debit cards on the internet, a new name for your jewellery line, or a great design for a mobile phone. All of these are “creations”, which can be protected by different and overlapping categories of intellectual property. But only if you get your idea out of your head and into action.
Why bother protecting intellectual property?
Most intellectual property rights are protected on the premise that society as a whole benefits from new scientific inventions and artistic works of creative individuals. Creative spirits, like you, should be incentivised to continue to produce works for the betterment of the community. The best way to accomplish this goal is to grant such creative individuals exclusive rights to their creations for limited periods of time. Your creations, whatever they are, need and deserve protection. Although free competition in the marketplace is encouraged, it should be fair. Consequently the law is designed to protect you from unconscionable competitors who steal your intellectual property. For example, the brand name of your product can be protected by a registered trade mark, your new invention of a computer-coded wizard to authenticate online sales can be safeguarded by a patent registration, your secret recipe and formula for pastry creation can be shielded by trade secret law, your distinctive design for a new perfume bottle can be covered by a design right, and your original design for a unique website or sculpture can protected by copyright.
The other side of the coin
That you are entitled to benefit from your creative endeavours and that such rights should be yours in perpetuity seems only fair and stems from a basic sense of natural justice. But little in life is black and white. Just as a society rewards you, it also needs to draw lines and limit the boundaries of intellectual property rights. Free speech, including the right to know, needs to be considered when the media broadcast news items. And handing over inventions to the public for use and development without charge comes at the end of a patent.
In a free and idea-rich society such as ours, creative spirits need to be nurtured and encouraged so that the creative process can prosper. No man is an island and we rely on each other for insight and inspiration.
Creative spirits must be able to draw on prior inventions and artistic works in order to reach even greater heights. Even a genius such as Sir Isaac Newton admitted with humility, “If I have seen further it is by standing on the shoulders of giants.”
A creative spirit thrives on past experiences, prior inventions, and previously experienced artistic works. This is the way our civilisation has advanced for years and nothing I have seen over two decades of experience has caused me to believe that it is changing. In fact, the more that new ideas emerge into creations, the more exciting and endless it seems. I have watched the internet unfold and develop from a simple communications jalopy to an entire platform and medium for living and doing business.
What will be next? Perhaps one of you reading this knows.
Checklist
- Have you identified all the types of intellectual property that you hold? Are there any areas of crossover, for example a trade secret that could be patented, or a design right that could also be trademarked?
- Do you have the appropriate protection for your intellectual creations or business assets? Where possible, have you registered your intellectual property?
- Do your agreements with business associates, subcontractors, and employees clearly define the ownership of intellectual property at stake?
- Do you have evidence to prove your ownership of your intellectual property? Are you keeping accurate records as evidence of ownership?
- Have you checked what your competitors are up to? Have you searched public registries and databases to see whether someone has filed or owns conflicting intellectual property rights?
- Have you used the appropriate warnings or notices to alert everyone to the intellectual property rights in your creations?
- Are you administering your intellectual property to ensure that the necessary rights are maintained and renewed in good time?
- Do you have the necessary safeguards in place to keep your creation confidential?
- Do you have good legal counsel who can guide you through all of the above?
About the Author
Frederick Mostert is Chief Intellectual Property Counsel of the Richemont Group which includes Cartier, Mont Blanc and Chloe. He is a Past President of the International Trademark Association and a Guest Professor at Peking University.
This article is an extract from ‘From Edison to iPod’ by Frederick Mostert, published by Dorling Kindersley, and available from www.dk.com priced at £14.99