Intellectual Property (IP) is an asset created from our minds. Some examples are designs, inventions, process flows, artworks and even names. In the past, using IP as a business strategy is often seem as the game played by big corporations. However, individual consultants and smaller companies can also leverage on IP to gain significant advantages. In this article, we seek to understand what are the different types of intellectual properties and how firms can utilize IP to their advantage. Broadly speaking, the different IPs are as follows:
- Geographical Indications
- Trade Secrets
Most people may be familiar with the first three – trademarks, patents and copyrights. For the last three – designs, geographical indications and trade secrets, we may be less familiar. Let us explore in details.
Trademarks – Protect names/signs
Photo from – Unsplash Nicolas J Leclercq
A trademark can be a symbol, design or words that identify your products or services. The primary function is to distinguish your goods or services from others. It is an important element of any business as it not only provides an identity, but also communicates to consumers that the goods or services bearing the mark come from a unique source. An example is the iconic “bitten Apple” logo that is on all Apple products.
Patent – Protect functionality
A patent is an exclusive right granted for an invention. It gives the owner legal rights to exclude others from making, using or selling for a limited time period, typically 20 years from date of filing. For an innovation to be patentable, it needs to have 3 key requirements:
- Be new – never been made public in any way or anywhere in the world
- Involve an inventive step – It cannot be an obvious step for someone with good knowledge and experience on the subject matters.
- Be capable of industrial application – an invention must be capable of being made or used for industry.
A well-known example of patent is Global Positioning System (GPS) invented by the Navy in United States.
Copyright – Protect expression of ideas
Copyright gives the creator the rights to have over their literary and artistic works. It protects works such as music, paintings, novels, film and computer programmes codes. When you own the copyright, you control the use and commercial exploitation of these works. You will have the right to prevent others from reproducing, publishing or adapting your work. A copyrighted example will be Mickey Mouse character from Disney.
Photo from – Unsplash Markus Winkler
Designs – Protect Aesthetics
A design right protects the way a product look. It refers to the features of a shape, colours, pattern, configuration or ornament applied to any article or non-physical product that give its appearance. Design right gives the exclusive rights for that appearance to the product. As the owner, you can prevent others from using the design without your permission. An example of design rights will be the bladeless fan from Dyson. Dyson can prevent others from copying and producing similar bladeless fan design.
Geographical Indications – Protect location identity
Geographical indications (GI) are signs to identify a product as originating from a specific geographical territory which possess qualities, reputation or characteristics that are essentially due to that given place. Most commonly, a GI includes the name of the place of origin of the product. An example of GI is Champagne (France) for Wine.
Trade secrets include any business information that has commercial value in being kept as confidential. This IP covers all forms and types of information such as know-how, data or recipe that provide you with economic or competitive advantages. The famous example of a trade secret is the formulation of Coca-Cola. It is being kept a secret for over 100 years. The great commercial value of the formula is why Coca-Cola safeguards extensively.
So how can companies utilize IP to their advantage?
For small companies, every penny has to be spent wisely given that financial resources are limited. We have to evaluate whether the IP (eg trademark, patents, copyright etc) to be filed will help to support and drive the business goals and objectives.
For instance, filing of patent requires disclosure of the invention. Companies will have to decide if they would want to share information publicly. Moreover, patents are territorial and hence needed to filed in each country that protection is sought after. As such, high costs will be incurred to maintain the patent filing across many countries. For patent, normally, the patent holder must sue someone infringing their patent in order to enforce his or her rights. All the costs added up may be very heavy for small company to bear.
If a patent is filed for strategic reason such as increasing value of the company, the company can file in country where the products are manufactured and their biggest sales market. A detailed cost-benefit analysis will be needed especially if budget is a constraint. Alternatively, it might be better to keep the know-how as a trade secret.
What if companies are not able to invent?
Not all companies will be able to create new invention and get patents. However, all companies would have their own logo as part of their branding effort. As logo is an identity, together with it’s tagline, they help company to differentiate their products from competitors. Consumers can then better identify and choose their preferred brand. As a brand owner, it is essential to protect your brand. The first simple step is to apply for trademark of the logo and brand name. It is possible to license your brand (logo name) to others for a fee so that they can use on their products.
The design of a product helps to serve a function and also act as an identity. As a product owner, there are many ways to exploit your design rights. Once a design is registered, it helps to bar others from copying especially counterfeiters or competitors. Conversely, it can be licensed out to partners for commercial returns. Or purely sell the design for monetary returns.
Trade secret is the secret sauce that contribute to a company or individual success. Nearly every company or person in business has trade secrets of some sort. It can be almost anything such as unique ways, processes or methods of conducting business that provide an economic and competitive advantage over the competitors. As such, smaller company is still able to gain an edge over bigger competitor.
To leverage on the different IPs, the strategy is ultimately determined by the value it creates for your organization. The value can be in terms of positioning your company, getting products to market faster with exclusive rights or even gaining recurring licensing fees. A comprehensive strategy can help to identify infringers and also potential licensing partners. Managing IP portfolio can help companies to identify opportunities and new markets for their products and services.
However, it is important to note that registering and enforcing IPs are 2 different things. Having the IP registered does not automatically generate the immediate value that you want. The rights can only be enforced or contested when infringed by others. This tends to be reactive. For jurisdiction where the IP laws and regulation are weak, the rights may be even be harder to enforce.
A proactive approach provides the ability to prevent lost revenue due to fakes (anti counterfeit), track supply chain and engage consumers to authenticate genuine products. A forward-looking smart brand protection program not only protect against counterfeit but also help to drive business growth. There are some practical approaches on how to use Intellectual Property as a business and marketing strategy which we will discuss in another article. IP protection is often being overlooked by smaller companies and individuals. The rewards will come for those who take the effort and flexibility to utilize them.