HOW SMART IS INTELLECTUAL PROPERTY

HOW SMART IS INTELLECTUAL PROPERTY
Intellectual property. Even the words themselves sound kind of smart. Clever.
Intellectual property can be the magic. The ideas and the concepts that you dreamed up, and that set your business apart from the rest.
What is “IP”?
It is your brand names and trade marks, the new inventions and systems you’ve developed, the different way of doing business. The product that nobody has seen before.
But it is also your database, the one-off documents that you’ve drafted, your website and social media pages, even the name your business goes by.
All very smart indeed, and worth protecting because they’re yours. Nobody elses. Yours. And they add value to your business.
So why is it that some otherwise very switched on people in business risk it all by not protecting their intellectual property?
You tell me.
How can you protect your IP?
The things that you should do if you have a business worth protecting are these as a minimum:
  1. Set up a company using your brand name. Even if you don’t want to trade using that name. Do it to stop someone else doing it. A blocking measure.
  2. Secure the domain name using your brand name. Make sure you get the suffix that is prevalent in your market. In New Zealand that would be the .co.nz suffix. While you are at it make sure you grab at least the facebook address to.
  3. Register a trade mark including your brand name. This gets complicated because if your brand name has geographical connotations or is a regular kind of word you will struggle. It might not be distinctive enough. You may need to develop a logo.
There are a whole lot of classes of products and services that you can register your trade mark under, and you have to select the ones that you really want protection in.
Registration of a trade mark will give you a monopoly on the use of that mark in the class or classes it is registered in.
Then, in the online environment anyway, rather than having to prove in Court that your rights have been infringed, you might be able to make the problem go away by presenting your Certificate of Trade Mark Registration to the internet service provider as proof of infringement. A lot cheaper than having your day in Court.
  1. Consider who should own your trade mark. Should you have one entity to own your IP (including trade mark, any inventions/products/operating systems developed or patented by the owner), and another entity (most commonly a company) to operate your business? It sounds convoluted but it would protect your IP from risks associated with the business.
McDonalds
Lets take an example we can all relate to. McDonalds. A well known name. I’ll bet you can’t set up a company using the words “McDonalds Restaurant” because they will have it already. Now they also have a distinctive brand – the golden arches. I’ll bet that if you tried to secure a trade mark in pretty much any type of food class with a logo that looks like the golden arches you will fail. Likewise the domain name. Facebook. Twitter. And so on.
McDonalds know that their brand, their recipes and their systems are hugely valuable and so they protect them from pretenders who might try to lead people to think that they are somehow part of the real thing.
Duplication
But not only that, but by protecting their intellectual property McDonalds have created a much larger opportunity, because they have successfully duplicated their brand, recipes and systems around the world. They have granted people the right to use them – as long as they follow the rules that McDonalds sets down – and benefit from the McDonalds reputation to build a successful business. And in exchange for that they pay McDonalds a franchise fee.
It is going to be very difficult for you to convince anyone to pay you a franchise fee or a licence fee for copying your idea if there’s nothing really distinctive about it.
You’re going to feel even worse if, one day, someone emails you and tries to sell you the product you developed, or something that has your brand name or a logo that looks an awful lot like your one.
Passing Off
I’ve also seen people try to fight a rearguard action. If someone has stolen your brand name you can take them to court and try to prove that they are “passing off” their business as yours. In other words, that they have copied your business and must stop, and pay you compensation for the business you’ve lost.
That might work, but at what cost in time, money and stress. Wouldn’t you be better just to take the time at the start and get some proper protection in place? It might not stop some people but it will certainly make it easier to stop them.
The thousand pound gorilla
On the other side of the coin I’ve had clients who have faithfully and successfully operated their business for years. Then suddenly along comes a global giant of a company who might not even be operating in your market, and with all their resources they will stop you using your brand name.
Its “similar” to one of their brand names (apparently), and they are thinking about getting kicked off in town about now (they say). So you can’t have it any more. Don’t believe it can’t happen here, we’ve seen it.
Don’t get hijacked
The take home message is basically this: if your protections are in place you are in a better bargaining position, and the chances of your business being hijacked by this sort of behaviour are much reduced. It doesn’t mean you won’t have some hassles along the way if someone is hell bent on doing something unethical. But at least you’ll be ready.
We have experience in this area and can help your business protect its IP and even benefit from it. Call us on 03 4500000 or email russell@queenstownlaw.co.nz