And do I have any Intellectual Property? (The answer is, yes, you most likely have some form of IP that you can make money from)...
Knowing a bit more about IP is key to understanding the rest of the concepts contained in this blog. I frequently hear IP terms being bandied about incorrectly, such as inventors who want to ‘patent a name’, or ‘copyright a logo’. Hopefully at the end of this section you will have a clearer understanding of how each of these rights work and what they can and can’t protect.
Bear in mind that in the real world it’s never clear-cut and you will most likely come up with something that cuts across several of these types of IP rights.
This section is meant to raise awareness of what forms of IP are available so that you are sensitized to this and don’t fall into the trap of discarding or disregarding the value of your ideas.
Patents (called ‘Utility Patents’ in the US)
Patents are temporary monopolies granted by a country to an inventor, generally for a period of 20 years. Patents may be used to protect inventions that are new, involve an inventive step, and have some sort of application in trade, industry, or agriculture. A rather hackneyed example of a patent that most people could relate to would be a new type of mousetrap. The way in which the new mousetrap works, its machinations in other words, is generally what’s patentable.
So, patents generally provide protection for a principle of operation of a new apparatus, or even a method or process of doing something, such as chemical processes patented by large chemical giants. Different aspects of one invention can be captured in more than one patent, and sometimes really big inventions can be split into many patents, using a system of ‘divisional’ or ‘continuation’ patents, described later in this book.
The details of the inventions are described in a technical document called a patent specification, and I’m going to give you lots of information regarding the type of information that you can use to file killer patents – this is contained in a special report which you can download using the code at the back of this book. At the outset, I should say that I would always suggest that you rather scrape together the money and get a patent lawyer to do this for you. It will be less stressful, and you’ll have way less chances of it turning into a nightmare and you losing all of the protection you may have been entitled to. However, I promise to give you insider’s tips and secrets that will save you thousands of dollars in legal and patent fees, information that you simply won’t get anywhere else.
Always remember: a patent specification must aim to provide you with the widest possible coverage for your invention (captured in a series numbered paragraphs at the end of the patent specification, called ‘claims’), while steering clear of previous inventions in your field. This is an art in which patent attorneys receive many, many years of training and I’ll delve into this a bit deeper later on.
Registered Design Rights (called Design Patents in the US)
While patents protect new technical innovations or the way a product works, a registered design protects the way your product looks. These oft-neglected rights are used to protect industrial designs. You may have designed a new pattern, bottle, or music stand that has an aesthetically pleasing shape. Design rights typically last for a shorter period of time than patents – in some countries it’s 10 years, in others (such as the USA) 15 years or thereabouts. Once again, designs protect the way something looks, rather than the way it works. If you don’t think that design rights are important, take another look at the ‘look’ of Apple’s products. It’s one of the few companies that grasp the tremendous value that good industrial design can bring to the table, provided that it’s protected. In fact, one of the infamous mobile phone wars is taking place based upon Apple’s design rights that they obtained for the look of the iPad and iPhone.
Another example is for the shapes of ordinary household goods, things which can no longer be patented because they’ve been around for ages (such as bottles and containers), but which may have been redesigned to have a different look to them.
When Procter & Gamble brought their new Head & Shoulders anti-dandruff shampoo to market, they designed a bottle with a characteristically long neck, which was combined with blue and burgundy coloring. P&G, as they do, spent a huge amount of money on advertising, and the product was met with great success. A few months down the line, and a lower-priced anti-dandruff shampoo made its way on to the market, manufactured by a competitor. How was it packaged? You guessed it – in a bottle with the same color combination as Head & Shoulders and sporting the same long-necked bottle design.
P&G took action and managed to make the competitor change its coloring, but they had neglected to file a design registration for the shape of the bottle and were thus unable to stop the rival bottle from occupying shelf-space next to theirs. A very costly oversight and one that ensured that P&G now file design applications for every single industrial shape or design that they come up with.
A trademark is a brand, mark, sign, logo, emblem or name that is used to distinguish your goods or services from other similar goods or services.
Good examples of brands or names are ‘Google’, ‘Adidas’, ‘Coca Cola’. Examples of logos protected by way of trademark registrations are the Nike ‘swish’, the ‘shell’ motif owned by the Royal Dutch Shell company, the lowercase ‘f’ symbol of Facebook… you get the idea. It’s a visual sign of distinction, but can also be in the form of a unique sound (think the Microsoft sound when starting up), scent (uhm, not so useful these, but weirdly used by an Asian tire manufacturer to make strawberry-scented tires), or colors (think of the red soles of Christian Louboutin shoes, recently successfully defended in court against Yves Saint Laurent).
Trademarks are not the same as company names – your company may trade under a certain name – which may also be registered as a trademark – but you could eventually sell numerous products, each with their own name, logo or get-up which could be registered as trademarks in and of themselves.
Registering a trademark is the most important and cheapest step to stopping counterfeiters from passing off their inferior goods or services as yours, or of trying to imply a connection between their business and yours. As trademarks are central to brand building, and can be renewed indefinitely, they are a valuable vanguard against competitors. Trademarks are renewable every ten (10) years, and are renewable in perpetuity, thereby providing protection against competitors trying to pass their inferior goods or services as your own.
It’s also worth mentioning Internet domain names at this stage, as they can also provide you with unique benefits, if coupled with solid trademark protection. Always try and secure the name of your company and important products as trademarks and domain names.
The reasons are obvious, but we’ll be delving into this in greater depth in a later chapter, where I’ll show you how you can stop other people from misusing your company name or the names of your products or services.
Copyright refers to the rights of an author or creator to stop the unauthorized reproduction of any part of his or her original artistic, literary, dramatic or musical works. Copyright is the mainstay of the publishing, film, choreography, graphic design, art, and music industries.
Interestingly, computer software is also protectable in terms of copyright, although increasing numbers of patent applications are also being filed in the USA, Europe, and elsewhere for software.
In most countries it is not necessary or even possible to register copyright in any work – it vests in the author by virtue of his or her original work having been reduced to a ‘material form’. In other words, copyright vests automatically in the creator thereof, once he or she has taken it out of their mind and committed it to some sort of material form, such as by writing it down or sketching it out.
Generally, there is no central register in which you can apply to register copyright in a book you have written (except in the USA, where there is a Copyright Office, which is helpful in providing you with a date-stamped certificate showing when your work was lodged with them) or a piece of music you have composed. The mere act of creating it is enough, provided it is your own original thinking and creativity that went into the creation thereof.
This doesn’t mean that it isn’t enforceable against copycats or infringers – it just means that you should keep a record of how you created your unique work so that this can be presented to a court of law if it turns out that someone is infringing your copyrighted work. Proving you own the copyright in something you created is a lot easier if you can show a trail of developments that resulted in the end product, especially if the alleged infringer cannot show any such development work that they had done.
Trade secrets typically refer to confidential, proprietary information that you have and that no one else has. It only has value if it remains a secret. This value can only be inferred if: it is clear that the information is in fact confidential, it has value to you, and you will suffer a loss if someone steals the information from you or makes it public.
Trade secrets can be one of the most powerful rights that you have, but some of the smartest companies in the world still underestimate the incredible value that trade secrets, if managed correctly, can hold for a company.
For this reason, it’s important that you clearly mark any confidential documents, emails, letters, or other items as being confidential, that you ensure that access to these items is restricted either electronically (segmenting a hard drive, database, or software for example), or physically (having a locked room or file cabinet, with only certain person’s being able to access these items), and that people you are working with understand that these items are valuable and that you will suffer a loss if the trade secret is compromised.
A great example of a trade secret is the ‘secret combination of eleven herbs and spices’ that’s found in KFC’s fried chicken. KFC goes to extreme lengths to protect their recipe. Some of the ingredients of the recipe are mixed together in one location, while the remainder is mixed together in another location. They are mixed together in a specific ratio at yet another venue. It’s rumored that only two people in the world know what the recipe contains and what the ratios are. If Colonel Sanders had tried to patent his secret recipe or his way of making chicken in the 1930s, then the patent would have expired in the 1950s and anyone would then have had access to his patent document and would be able to follow the recipe contained there. But because his product was suited to a trade secrets-type of arrangement, they’ve managed to keep it secret for more than 70 years. In fact, when the KFC headquarters were moved recently, they spent more than $2 million dollars in security measures when moving the original recipe to the new location, to ensure that it didn’t disappear along the way.
In a nutshell: they have sold billions of dollars of chicken based on nothing more than a well-managed secret.
A Holistic Approach
That’s quite a mouthful, but you should bear in mind that, as I said at the beginning of this chapter, it’s not always clear-cut and there can be quite a bit of overlap between these various rights in the cut-and-thrust of everyday business.
Successful companies all over the world use all of these rights to a greater or lesser extent and the most successful of them manage to do so without falling prey to what I call ‘IP-paralysis’, a condition in which everyone knows something about IP, but not enough, so they end up doing nothing and blame IP for their failings.
So, while the delineations between these various legal rights are sometimes quite artificial and academic, you should take a holistic approach to the protection of your ideas and business concepts. You need to keep on searching, keep on thinking, and keep on protecting. Once you touch IP, there’s no going back – it’s a thrill once you know that you’ve protected your ideas from theft, and once you’ve been through the process it’s unlikely that you will be able to stop protecting your core IP.
However, to get the most value out of your IP, you must ensure that all of the above forms part of an integrated intellectual property strategy that will help you decide when to protect, what to protect, and how to protect what’s rightfully yours. This will be dealt with in a later post in this blog, in which I’ll show you how to set up your IP strategy so that it is in alignment with your business strategy.