Wednesday, 30 November 2022

In Industry

Growing a Business using Intellectual Property in West Africa

West African business owners must know that Intellectual Property is very important for a business, because it is at the core of business development, as represented by Trademarks, Copyright, Trade Secrets, Patent, and Utility Models.

Intellectual property (IP) is an important business asset. The general IP portfolio of an existing business may consist of patents, trademarks, copyrights, and designs. These intangible assets can have significant value that can benefit your business in a variety of ways. It can be used as a marketing tool to build brand awareness and reputation for innovation. 

You can also secure your investment, generate revenue, build a competitive advantage and help you grow. Intellectual property, like any other form of property, can be sold, transferred, mortgaged and licensed to others. You can also consider outsourcing product distribution to grow your business through the franchise and leverage your IP commercially. 

West African businesses, innovators and inventors are represented by two regional organisations, that help their governments to protect their IP - Organisation Africaine de la Propriété Intellectuelle (OAPI), and African Regional Intellectual Property Organisation (ARIPO). 

There are several ways in which IP can be obtained. One way to obtain IP is to create the intellectual product and/or design a new product. For example, you can create a new product that relies on patented technology, register the patent and sell the product. This would also include trademarks, patents or copyright on your new products. Another area of intellectual property that could be developed is patenting processes or methods for creating a new product.

West African small and large businesses must know and learn how to use Patents. A patent is an exclusive right granted by a government for an invention that is new, involves an inventive step, and is capable of industrial application. It affords its owner the legal right to exclude or prevent others from making, using, offering for sale, selling or importing a product or process based on the patented invention. A patent is granted by a national patent office, or by a regional patent office that represents a group of countries. It is valid for a limited period of time, generally up to a maximum of 20 years from the date of filing, provided the patent owner pays promptly the fees required to maintain the patent in force. A patent is a territorial right limited to the geographical frontiers of the relevant country or region. In return for being granted a patent right, patent applicants are required to provide a detailed, accurate and complete written description of their invention. Patent documents (patent applications and/or granted patents) are published by patent offices around the world and form the primary source of patent information. As a result, public patent collections and commercial patent databases are an essential and often unique source of technical in- formation, since many related inventions are not published in scientific literature.

West African small and large businesses must know and learn how to use Trade Secrets. A trade secret is any information that is commercially valuable to a business to the extent that it is kept secret. Broadly speaking, any information may be considered a trade secret, from technical know-how and client lists to financial information and marketing strategies, etc. Trade secrets are often described as an iceberg of which patents are the visible tip. A startup may hold a huge reservoir of confidential information, some of it potentially patentable, all of which, if kept secret, could qualify and be protectable as trade secrets. A startup may decide for strategic reasons to keep its patentable information secret, because to apply for a patent it will be required to make that information public. Information that has been disclosed, in the course of a patent application or for other reasons, no longer qualifies as a trade secret.

West African small and large businesses must know and learn how to use Copyright. Copyright law grants, to authors, composers, computer programmers, website designers and other creators, legal protection for their literary, artistic, dramatic or other forms of creation, which are usually referred to as “works.” Copyright law protects a wide variety of original works, including books, magazines, newspapers, music, paintings, photographs, sculptures, architecture, films, computer programs, video games and original databases. However, it only protects the expression of an idea; it does not protect the underlying idea or concept. This is an important distinction. If an idea is expressed in a different way, it is unlikely to infringe an author’s copyright. Copyright law gives the author or creator of a work a range of exclusive rights over his or her work for a period of time defined in national laws. In most countries copyright extends for the life of the author plus 50 years; in some countries, including the United States of America and Europe, it lasts longer. These rights enable an author to control the economic use of his or her work in a number of ways and to receive payment. Copyright law also provides “moral rights,” which protect, among other things, an author’s reputation and integrity. In general, an author cannot assign these rights.

West African small and large businesses must know and learn how to use Trademarks. A Trademark is any sign that is capable of distinguishing goods or services (including words, names, letters, numerals, drawings, pictures, shapes, colors, labels, or any combination of these) may be used as a trademark. In most countries, taglines, advertising slogans and titles may also constitute trademarks. Legal protection of a trademark is obtained by registration and, in some countries, by use. To obtain a trademark registration, the first step is to file the appropriate application form at the national or regional trademark office, which examines applications in accordance with locally applicable law and grants or refuses a trademark registration. While the term of protection may vary, in many countries registered trademarks are protected for 10 years. Registration may be renewed indefinitely (usually for consecutive periods of 10 years) provided renewal fees are paid at designated times before registration expires.

West African small and large businesses must know and learn how to use Industrial designs. The term “industrial design” refers to the ornamental or aesthetic aspects of a product. A product may be protected as an industrial design if certain conditions are met. Protection does not cover the technical or functional aspects of a product. To register an industrial design, an applicant must file a national or regional application at the relevant national or regional IP office. Protection of an industrial design varies from country to country but lasts at least 10 years.

Patents, Trademarks, Utility Models, Trade Dress, and Trade Secrets, can boost West African countries economies, creating business and market value in official circles like Stock Markets, and Intangible Assets that are Bankable. 

A crucial point about legal protection of intellectual property is that it turns intangible assets into exclusive property rights, albeit for a limited period of time. It enables your SME to claim ownership over its intangible assets and exploit them to their maximum potential. In short, IP protection makes intangible assets a bit more tangible by turning them into valuable exclusive assets that can often be traded in the market place.

If the innovative ideas, creative designs and powerful brands of your SME are not legally protected by IP rights, then these may be freely and legally used by any other enterprise without limitation. However, when they are protected by IP rights, they acquire concrete value for your enterprise as they become property rights which cannot be commercialized or used without your authorization.

Increasingly, investors, stock market brokers and financial advisors are becoming aware of this reality and have begun to value IP assets highly. Enterprises worldwide are also more and more acknowledging the value of their IP assets, and, on occasions, have included them in their balance sheets. Many enterprises, including SMEs, have begun to undertake regular technology and IP audits. 

In a number of cases, enterprises have realized that their IP assets are in fact worth more than their physical assets.  This is often the case for companies operating in knowledge-intensive and highly innovative sectors, or companies with a well-known brand name.

Sources: OAPI, WIPO, ARIPO

Cabanga Media Group publishes of thoughtful economic and business commentary magazines and online media, in several African markets, that include South Africa, Botswana, East Africa Community, Ethiopia, Egypt, Nigeria, and Zambia.