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Aleck Ncube, Intellectual property
SMALL to medium enterprises (SMEs) must understand the various forms of Intellectual Property (IP) protection available to them. These IP rights are often confused. There are some similarities, but these IP rights are different and serve different purposes. But they need not be mutually exclusive. For any one product, more than one form of IP protection may apply, as long as it meets the requirements of the laws that govern that form of protection.
A Patent
It is described in the World Intellectual Property Organisation (WIPO) ‘INTELLECTUAL PROPERTY HANDBOOK’ as a document, issued, upon application, by a government office (or regional office acting for several countries), which describes an invention and creates a legal situation in which the patented invention can normally only be exploited (manufactured, used, sold, imported) with the authorisation of the owner of the patent. “Invention” means a solution to a specific problem in the field of technology. An invention may relate to a product or a process. The protection conferred by a patent is generally limited to twenty (20) years.
A Utility Model
This applies to a relatively small invention — usually in the mechanical field. Utility models tend to come as devices or useful objects.
A Copyright
A copyright deals with the rights of intellectual creators of literary and artistic works, such as books, paintings or drawings.
The latter works are embodied in physical objects, but there can also be copyrightable works that are not embodied in physical objects, for example a piece of poetry or music.
WIPO considers that copyright constitutes an important element in the development process. It maintains that the enrichment of the national cultural heritage depends directly on the level of protection afforded to literary and artistic works.
Related Rights
These are rights that are related to or neighbouring on copyright. WIPO identifies three kinds of related rights: The rights of performing artists in their performances; the rights of producers of phonograms in their phonograms; and the rights of broadcasting organisations in radio and television programmes. These rights are conferred on that group of people that assist in the dissemination of literary and artistic works to the wider public.
A Trademark
A trademark is any sign that individualises the goods of a given enterprise and distinguishes them from the goods of its competitors.” Industrialisation and the growth of the market-oriented economy allow competing manufacturers and traders to offer consumers a variety of goods in the same category.
Geographical Indications
A geographical indication (GIs) is a sign used to identify a good as originating from a specific geographical territory, or a region or locality in that territory where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. GIs tend to be used in respect of goods and services like foodstuffs, drinks (e.g. Mazoe Orange Crush), spirits, wines, handcrafts.
Integrated Circuit–Layout Designs
Integrated circuit-layout designs are governed by the Integrated Circuit-Layout Design Act. This legislation was introduced in Zimbabwe in order to comply with the requirements of TRIPs in the context of the country’s membership of the World Trade Organisation (WTO).
A classic example of overlapping IP protection for a product is demonstrated by the Coca-Cola company’s protection of its IP.
In 1915, the Root Glass Company won a Coca-Cola Company contest for a bottle design that would be recognisable to everyone, even by touch in the dark.
The first design patent on the “hobble skirt” contour bottle was granted on December 25, 1923, to the bottle manufacturer (known as “the Christmas bottles”).
The second design patent for the contour bottle was granted to the Coca-Cola Company on August 3, 1937, preventing imitation of the bottle for another 14 years.The bottle shape became so well known that it became synonymous with the Coca-Cola product.
The Coca-Cola Company sought and obtained a federal trademark registration for its contour bottle shape on April 12, 1960, enabling the company to safeguard the bottle design indefinitely.
The Patent was used to protect the original and second design patent on shape of the Coca-Cola bottle, the Trademark is used to protect the name Coca-Cola, COKE, shape of the bottle, Copyright is used in advertising and promotional activities, finally Trade Secret protection is used for the formula of the drink itself.
SMEs must understand that failure to have a basic understanding of intellectual property and its importance can prove costly.
They must appreciate the usage of the IP system not only defensively, but perhaps more significantly, its contribution to the overall economic health and well-being as well as the growth potential of their enterprises.
Failure to identify intellectual property business assets (a “needs analysis”) and development of an overall strategy for the IP portfolio — from the start must be avoided at All costs by SMEs.
The Principle of Territoriality
Failure by SMEs to understand that IP rights such as patents and trademarks are “territorial” is a major challenge for them when it comes to exporting their products.
Research has revealed that very few SMEs know that a Zimbabwean granted patent or trademark provides protection only in Zimbabwe.
Failure to understand that trademark registration is required to have rights in almost all countries of the world and failure to understand that a patent is required in any country where a company wants to enforce its patent rights.
Use of a trademark on goods or services without registration does not provide trademark protection, except in a handful of countries.
The concept of “prior art” may not protect a patent holder against issuance of an infringing patent; the patent holder must have a patent in that country to enforce against the infringing patent.
The Zimbabwe Intellectual Property Office (ZIPO), based in Harare Zimbabwe registers All forms of IP developed in Zimbabwe as well as the IP from outside Zimbabwe by non-citizens in conformity of the territoriality principle.
The African Regional Intellectual Property Organisation (ARIPO), is a regional body that registers IP from countries which are its member states.
The World Intellectual Property Organisation (WIPO) registers IP at an International level. Let me conclude with a quote from Mark Twain, who remarked that “I knew that a country without a patent office and good patent laws was just a crab, and couldn’t travel any way but sideways or back ways”
Aleck Ncube is an Intellectual Property scholar. He can be contacted on; mobile: +263712374408
Skype: Matintas1 Twitter: @aleckncube Alternative E-mail: [email protected]
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