By Marsha S. Cadogan, Bsc. LLB. LLM. PhD
Canaan Bridges Consulting; MSC Intellectual Property and Technology Law
The World Intellectual Property Organization, the body that governs intellectual property laws globally, recently published a report on the most innovative cities in the world. The report indicates that innovation is dispersed across the globe and is no longer centred in any one area or region. Innovation involves new or refined ways of doing things, whether in manufacturing, services, or in the development of technologies. This trend in the geography of innovation brings to fore the relevance of intellectual property to the sustainable growth of Caribbean businesses.
Intellectual property rights are the benefits bestowed on the owners or licensees of intangible assets, based on the creativity and innovation that was involved in the creation, fixation, invention, design, or production of a product or service. This benefit includes the right to prevent others from making, selling, using, leasing, or developing the owners’ product without their authorization. The forms of intellectual property protection differ, based on the right that is protected. However, all countries that are members of the World Trade Organization offer minimum standards of protection for all major forms of intellectual property. Examples of intellectual property include trademarks, copyrights, geographical indications, industrial designs, patents, trade secrets, and confidential information. Is your business developing, fully capturing, and protecting its intellectual property? There is hardly any business that cannot benefit from an effective intellectual property strategy, whether the business uses intellectual property, or generates intellectual property from its activities.
Below are three pointers that can help entrepreneurs to identify and protect their firms’ intellectual property:
- If your business ventures include developing original content for manuals (training, maintenance etc.), then the content developed may be copyright protectable. If any part of your business develops and uses information that is integral to the continued existence of your business, so much so that it is confidential and only shared with relevant personnel on a need to know basis, the information may be protectable as a trade secret or confidential information. Examples of trade secrets and confidential information include the recipe used in making a commercial product, or the codes used to develop software. Globally, most jurisdictions do not have specific stand-alone laws to recognize trade secrets and confidential information as protectable rights. However, in the absence of statutes, firms can use non-disclosure agreements (with employees, relevant third parties, licensees, and sub-licenses as applicable) to prevent the disclosure of trade secrets and confidential information. Having this in place may protect your business’s bottom dollar.
- Is your business using a unique symbol or word to associate with a product or service in the marketplace? Trademarks can be used to build and differentiate a brand from that of its competitors. Not all words or symbols are registrable as trademarks. In addition to words or symbols, a growing number of jurisdictions across the world now make it possible for scents, sounds, holograms, and other non-traditional marks to be registrable as trademarks. To date, Trinidad and Tobago is the only Caribbean country that is soon to ratify the treaty (Singapore Treaty) that makes it possible to register these non-traditional configurations as trademarks. Businesses should obtain legal advice on trademark registrations and protection. Once your mark is registered, trademarks need to be monitored for infringements in all your product (or service) consumer markets. This is likely an expensive venture and often, rightsholders will have to make a strategic decision on which jurisdictions infringement resources should be allocated towards.
- You may have developed a novel technology or product that is yet to be on the market or commercialized. If your product satisfies the criteria for registration, it may be registrable as a patent, which may give you a monopoly to make, sell, use, or lease the product for 20 or 25 years (the term varies in some jurisdictions, for example in Guyana, the term is 16 years). In some cases, depending on the cost involved, or the markets to be associated with the product, patent registration may not be advisable, and other ways of securing the inventor’s know-how, such as trade secrets and confidential information, may be more practical. Patent registration is not the “end all” of a firm’s intellectual property strategy. Like most other types of intellectual property, patents need to be monetized; otherwise they have little financial relevance to the rightsholder. An effective patent strategy will identify and go after opportunities for commercializing the patent, whether by licensing, assignment of rights, or through collaborative innovation. In addition, rightsholders should have a strategy in place to effectively identify and deal with infringements.
The points above are by no means exhaustive, but provide an example of how relevant an intellectual property strategy is for businesses and entrepreneurs in the Caribbean region. The real start is intellectual property awareness – knowing what you have so that you can own what you have. If this task is consistently undertaken, the Caribbean will be on a strong path to constructive engagement with intellectual property rights.
