Many SME start ups, innovators, entrepreneurs and creatives, may know pretty much everything that pertains to their line of work but most cannot interpret legalities. Legalities are a complex jargon of words and phrases to those outside of the profession. Most entrepreneurs aren’t lawyers. Trying to pretend that we do not understand enough about intellectual property laws to safeguard our business isn’t going to hold up in any court of law in Kenya. Ignorance will not be a good excuse for a business when a disgruntled party files for litigation and chances are the other side isn’t going to accept that as a legitimate defense strategy.
What is Intellectual Property Law? It is a law that pertains to Intellectual property which is defined as an intangible form of property. Intangible means something that is not physical. It is the complete opposite of personal assets or real property, which are solid and much more easily defined. Intellectual property is the result of something created in the brain or the mind of an individual or a group of individuals. This idea is then manifested or interpreted in a form that has a physical existence and possesses exclusive property rights.
These ideas include, images, symbols, names, designs, industrial processes and business methods used in commerce, inventions, artistic, literary and musical works and software. This is the area of law that deals with and oversees the creation of the two basic laws that utilize the legal options provided by contract law and tort law and these laws are copyright law and trademarks.
Copyrights are a common area of intellectual property rights that has a lot of relevance to start-up SMEs. The Kenya constitution provides for this law that gives the Kenyan courts the power to promote the progress of science and useful arts, by protecting the creators. The protection is only for a limited period of between seven and ten years, during which the innovators enjoy exclusive rights to their works. This means that the concept maybe taken up by corporates and used to establish industries for economic growth after the expiry of the laid down period.
Copyrights apply to photographs, drawings, architect’s drawings, records and music. You can also secure copyrights for works of art, paintings and statuary, maps and computer programs, which are all expressions of ideas. It is worth noting that you can only patent a specific concept of manufacture based on an idea and a copyright of the same but you cannot copyright an idea, and similarly you cannot patent an idea. They have to be in physical existence outside of the mind for them to be copyrighted.
Trademark is a common area of intellectual property laws that has a lot of relevance to start-up SMEs. A trademark essentially relates to the name or logo of a particular trade that help in distinguishing one company from the other as the trademark remains unique and solely owned by the company alone. You cannot copyright a name, short slogan or a trademark. You instead register trademark rights in the name relating to a trade.
Finally, for you to claim a trademark place the letters “TM” after the name.
For those of you who maybe wondering where the use of the “R” in a circle comes in this is only given when you have actually registered the name with the Patent Office.
Why copyright or get a trademark for your business?
Every creator or innovator wishes to have their original works recognized as their own, and all money that can be made from this concept directed solely to them. Without a copyright or trademark, you expose yourself to others who can easily adopt your concept, develop it and make money out of it, leaving you out with no claim to it. A case that can be used as an example is the Bata and Valentinos footwear lawsuit which shows just how a copyright infringement suit can go.
What simply happened was that Bata Shoe Company contracted Valentino’s footwear to supply and pre-process some materials to be used by Bata Shoe Company. A few months of doing business Valentinos footwear adopted the Bata shoe company raw material processing technique and business model. The agitated Bata filed for litigation and damages worth Ksh13million on grounds that this is firm stole their concept and has since then caused them loss of revenue. However, the case was dismissed at the end of it all after very many years of court battles on very technical grounds.
This case illustrates just how much damage a copyright infringement can do. It can set you back financially and also destroy the credibility of your company. It also tells just how important it is to copyright your property, since this will safeguard you from predators who might otherwise take it up and use it while you end up getting nothing out of it.
It’s essential to understand the importance of intellectual property laws to maintain a competitive edge. It adds a huge investment. Save your creativity before others try to steal it for their own benefits. Some rights are automatically saved by IP law but few protections should be applied for. Keep yourself updated regarding the changing laws and trends. To compete in the market you should be aware of the legal issues relating to intellectual property protection.