Intellectual property. Even the words themselves sound kind of smart. Clever.
And true, intellectual property can be the magic. "IP" its called. The ideas and the concepts that you dreamed up, and that set your business apart from the rest. Thats what it is - the brand names and trade marks, the new inventions and systems you've developed, the different way of doing business. The product that nobody has seen before.
But IP is also your database, the one-off documents that you've drafted, your website, linkedIn and facebook pages, even the name your business goes by. All very smart indeed, and worth protecting because they're yours. Nobody elses. Yours. And they add value to your business.
So why is it that some otherwise very switched on people in business risk it all by not protecting their intellectual property?
You tell me.
There are some things that you can do quite easily. The things that you should do if you have a business worth protecting are these as a minimum:
1. Set up a company using your brand name. Even if you don't want to trade using that name. Do it to stop someone else doing it. A blocking measure.
2. Secure the domain name using your brand name. Make sure you get the suffix that is prevalent in your market. In New Zealand that would be the .co.nz suffix. While you are at it make sure you grab at least the facebook address to.
3. Register a trade mark using your brand name if you can. This gets more complicated because if your brand name has geographical connotations or is a regular kind of word you will struggle. It might not be distinctive enough. You may need to develop a logo of some sort. What complicates things even further is that there are a whole lot of classes of products and services that you can register your trade mark under, and you have to select the ones that you really want protection in.
Lets take an example we can all relate to. McDonalds. A well known name. I'll bet you can't set up a company using the words "McDonalds Restaurant" because they will have it already. Now they also have a distinctive brand - the golden arches. I'll bet that if you tried to secure a trade mark in pretty much any type of food class with a logo that looks like the golden arches you will fail. Likewise the domain name. Facebook. Twitter. And so on. Do you get the point.
McDonalds know that their brand, their recipes and their systems are hugely valuable and so they protect them from pretenders who might try to lead people to think that they are somehow part of the real thing.
But not only that, but by protecting their intellectual property McDonalds have created a much larger opportunity, because they have successfully duplicated their brand, recipes and systems around the world. They have granted people the right to use them - as long as they follow the rules that McDonalds sets down - and benefit from the McDonalds reputation to build a successful business. And in exchange for that they pay McDonalds a franchise fee.
It is going to be very difficult for you to convince anyone to pay you a franchise fee or a licence fee for copying your idea if there's nothing really distinctive about it. And you're going to feel even worse if, one day, someone emails you and tries to sell you the product you developed, or something that has your brand name or a logo that looks an awful lot like your one.
Just how bad would that be after all the effort you've put in? To see your business just being stolen before your very eyes. I've seen it happen.
I've also seen people try to fight a rearguard action. If someone has stolen your brand name you can take them to court and try to prove that they are "passing off" their business as yours. In other words, that they have copied your business and must stop, and pay you compensation for the business you've lost. That might work, but at what cost in time, money and stress. Wouldn't you be better just to take the time at the start and get some proper protection in place? It might not stop some people but it will certainly make it easier to stop them.
On the other side of the coin I've had clients who have faithfully and successfully operated their business for years. Then suddenly along comes a global giant of a company who might not even be operating in your market, and with all their resources they will stop you using your brand name. Its sort of like one of their brand names, and they are thinking about getting kicked off in town about now. So you can't have it any more. Don't believe it can't happen here, I've seen it. And it is going to happen even more because of the Madrid Protocol.
The Madrid protocol is an agreement that a whole host of countries have signed up for. It will allow you to register your trade mark in as many of these places as you want with one application. Isn't that fantastic! But it will also allow people in all those countries to register their trade mark here. So get in quick while the going is good.
The take home message is basically this: if your protections are in place you are in a better bargaining position, and the chances of your business being hijacked by this sort of behaviour are much reduced. It doesn't mean you won't have some hassles along the way if someone is hell bent on doing something unethical. But at least you'll be ready.
We have experience in this area and can help your business protect its intellectual property and even benefit from it. Call me on 03 4500000 or email me on rem@prlaw.co.nz
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