Intellectual Property Rights. Relevant to the small business owner?

Intellectual property is a term that has become familiar during the 20th century, but is still often associated only with big business, successful artists, writers or movie productions. Yet, the law and impact of intellectual property and the rights associated with it have developed to such an extent that ownership of intellectual property has become a valuable commodity and one that even small business owners should take care to understand and appreciate.

Intellectual property affords the owner similar proprietary rights as any other form of tangible property, movable or immovable, and is every bit as valuable, if sometimes not even more so. The rights to such intellectual property can be defined as those rights that are exclusively recognised with regards to creations of the mind, such as trademarks, copyrights, patents, designs, literary works, artistic works, etc.

Though most of us are not basement composers, garage software inventors or amateur novelists, intellectual property rights are still of great relevance and importance to us. In the sphere of business, for example, trade secrets are critical to many a business and often define the success of a business. Likewise the name of a business, or specific products and services are important to differentiating a business and creating value for it. These elements all contain potential intellectual property which the small business owner can protect through enforcement of his intellectual property rights.

From a marketing perspective, the brand (for example, the name, slogan, and logo) of a business is its most valuable asset. This is how the business and its products and services, and ultimately its marketability, is perceived by its clients. To protect this brand, a business can register a trademark and use such to distinguish its goods and services from similar goods and services in the market. This brand must be secured and protected in order to ensure that other businesses do not dilute or damage the positive selling power of the brand, and in this instance one form of protection can be the registration of a trademark.

A trademark is registered by filing an application at the Trademarks Office in Pretoria. Upon successful registration the trademark is indefinitely protected, subject to a renewal fee payable every ten years. A trademark provides a relative cost-effective form of protection for your intellectual property on an indefinite basis in comparison to other forms of intellectual property such a patents etc. A similar process can also be followed for the registration of patents and other forms of intellectual property. Once registration is complete the owner has access to various remedies if and when his intellectual property rights are infringed upon.

Situations where intellectual property rights can be used to protect the interests of a business, may for example be, where someone imitates the distinctive appearance or name of a business to mislead consumers or to piggy-back on the success of an already established brand. For example if a certain Dwayne Jones opens a hamburger restaurant with the name McDwayne’s with a clown as its brand ambassador, this may be a blatant infringement of the intellectual property rights of a well-known fast-food franchise.

In short, when it comes to small businesses and the protection of your assets, as you would have insurance for your buildings and vehicles, so to the registration of your intellectual property can be seen as insurance for your brand.

The steps in gaining such protection would commence by instructing an attorney to assist you with identifying the intellectual property elements of your business and where appropriate, commencing with the registration process to protect these elements. If a situation arises where your intellectual property is misused or damaged, your attorney can also advise you on how to go about protecting and enforcing your rights.

With difficult market conditions and fierce competition amongst small business for a portion of the market share, no business can afford bad publicity or loss of business due to intellectual property rights infringement. This may be the last thing that small business owners think about insuring or spending money on, but if left to chance it could cause far more financial damage than the cost of protecting these rights and justifies the effort in obtaining further advice.

February 20, 2013

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