Lawyers on intellectual property

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At the heart of the trade war between the United States and China are accusations by the former that the latter has been stealing US trade secrets, forcing American companies to hand over proprietary technology (read Intellectual Property) as a condition of doing business on the mainland, and providing state support for Chinese firms to acquire critical technology abroad.

A consensus is growing that these policies, designed to establish China as a dominant player in key technologies of the future, from semiconductors to electric cars, threaten to erode America’s technological edge.

The fact that United States President Donald Trump has risked a trade war with China, signifies the importance of intellectual property (IP) to any economy’s economic development and growth. To business, it’s actually a competitive advantage.

And in that spirit, the Zimbabwean Government recently launched The Zimbabwe National Intellectual Property Policy and Implementation Strategy. Sadly, the Policy and what it seeks to achieve has been missing in the mainstream media, even at a time the mantra is that Zimbabwe is open for business. This, experts say, could be a result of lack of awareness and education locally.

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.

Many people are unaware of the fact that they encounter Intellectual Property (IP) on a daily basis. The choices one makes in deciding which cereal brand they prefer to eat, which brand of soap they choose, which brand of mobile phone or computer they opt to use or which car they drive all involve some aspect of Intellectual Property.

We often choose certain brands over those of others because of their name (Trade Mark); their design (Aesthetic features) or their function (Patent). Intellectual Property in the form of Trade Marks, Designs and Patents dictate our everyday lives. Over time one will attach certain qualities to a particular brand and this will be a distinguishing factor for a consumer to opt to purchase it, over that of another.

To get an understanding of the significance as well as the level of use of Intellectual Property in the Zimbabwean context, Business Weekly (BW) spoke with Intellectual Property experts and Lawyers from Gill, Godlonton and Gerrans (GGG).

BW: What is the level of registration of Intellectual Property in Zimbabwe?

GGG: In Zimbabwe there is wide registration of Trade Marks, followed by Patents, as compared to the other branches of Intellectual Property. From statistics provided by the Zimbabwe Industrial Property Office (ZIPO) there have been approximately 10,719 Trade Marks filed in Zimbabwe from 2012 to June 2018 via the national, regional and international filing routes. Our perception is that the majority of trademarks filed in Zimbabwe come from foreign applicants.

Our economic challenges in Zimbabwe, resulting in a reduction in our manufacturing industry, led to a demand for foreign manufactured goods, which in turn led to an increase in trade mark filings by foreign manufacturers who sought to protect their brands in Zimbabwe. That said, we believe that a large number of our local individuals, SMEs and larger businesses have not fully utilized the registration processes available to them for their Intellectual Property in Zimbabwe.

This may be due to the lack of Intellectual Property awareness and education locally. Even when Zimbabwe’s economy is stable, the need to register intellectual property will remain, as more and more local brands are introduced into the market to compete with the foreign brands, thus increasing competition resulting in better quality products at lower prices.

The sooner the local Zimbabwean enterprises, entrepreneurs, innovators, inventors, artists and designers realise the need to protect and register their Intellectual Property, the better positioned they will be to compete in the local as well as international markets. We have a long way to go to catch up to developed economies.

BW: What is the significance of registering your Intellectual Property as a business?

GGG: As Intellectual Property attorneys, we cannot stress enough the need to register your Intellectual Property. Intellectual Property is an asset. While most businesses protect their physical assets e.g. by insuring their physical assets against damage or theft, they often forget about protecting their Intellectual Property Assets. It is an asset separate from the physical assets of your business. Goodwill and reputation will attach to your IP which can be valued and sold, together with your business or separately.

It adds to the value of your business. Regrettably Intellectual Property usually comes last on most business budgets, and most individuals or entities seek to redress IP issues only when things go wrong. As a business, it is important to protect your IP assets which can be used as a tool for growth, competitiveness and success. Many view the task and costs of registration as a long, tedious and expensive process but the benefits far outweigh the costs.

For example, Trade Marks are registered for an initial period of 10 years, and after that indefinitely subject to payment of renewal fees every 10 years. A promising invention may be lost to competitors if not protected. Effective IP protection is crucial in deterring potential infringement. One needs protection in order to turn ideas into business assets with market value which can then fund further innovation and set you apart from your competitors.

You can expand your business opportunities by entering into various licence agreements, where you authorise other entities to use your IP and pay you royalties. Registration has the advantage of establishing a clear right which can be used to deter others from taking unfair advantage, and making use of your IP without your consent.

In addition to the advantages set out above, there are numerous other benefits to registering your IP which include the following:

Once your IP is registered, you are identified as the rightful owner. You are entitled to statutory protection against any unauthorised use of your IP.

You can opt to institute criminal or civil action to prevent infringement.

You can use or sell your IP to generate income.

You can license your IP to other entities and recover royalties.

You are protected against competing with any confusingly similar or identical IP that exists in the marketplace.

BW: What advice would you give to businesses with regard to registering their IP

GGG: We would advise a business to register its IP because registered IP establishes a clear right for protection in the marketplace. Only registered IP holders can institute claims for infringement. Registering your IP makes it easier and cheaper for legal action to be instituted, rather than trying to protect yourself via the common law action of passing off, because you will have less of an evidential burden to establish.

Protect yourself. Disputes often arise regarding who owns the IP created in a business, especially when created by an employee during the course of employment at the workplace. If companies have clear policies dealing with these issues, disputes may be averted.

Often people in other countries anticipate that your brand will boom in foreign markets, and they steal your brand names, registering them as their own. When a business later decides to venture into a foreign jurisdiction it may find that it cannot utilise its own IP, as another has already registered it. The business is then forced to buy back its own IP at a cost, when this could have been avoided. Register your IP.

The costs of registration are not exorbitant. Seek advice from a professional. There are a number of legal firms in Zimbabwe, including ourselves, who can provide you with assistance and advice.

BW: How important is Intellectual Property to the long term development of a business or economy

GGG: A business goes through cycles, depending on economic factors in an economy at any particular time. Whilst you may not foresee your business expanding into other countries now, it is difficult to anticipate where your business will be in 10 years.

Secure your options by protecting your IP locally, regionally and internationally. It is an asset which can be used strategically. It adds value to your business. It needs to be protected as it protects your corporate image, goodwill and reputation.

Regarding the economy, Zimbabweans need to celebrate the talents of their innovators. Without IP awareness, the public are not aware that infringement is unlawful. This fuels illegal trade and loss of potential earnings for the government via import/export duties and taxes. Often the sellers of counterfeit goods do not pay duty and taxes. They do not keep official accounting records and because of this can offer competing products at a cheaper cost. This leads to loss of potential earnings for the Government and costs to public at large. Often counterfeit medicines and other goods are not tested for side effects or approved by the relevant authority and this may be harmful to those consuming or using the products.

The creative works from Zimbabwean creators need to be protected so that they can reap the full benefits of their work. Investing in Zimbabwean grown ideas will spur economic growth which will drive investment. Increased investment will help with job creation and reduce poverty.

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