Legal

IPR “Reverence” not just “Relevance” must be ingrained into every SME!

MSMEs are more familiar with Intellectual Property Rights or IPR as a threatening bombshell when some software company launches a raid on your office or factory with a couple of policemen in tow. The allegation against you normally is that you do not own a licensed version of CAD or some language font or whatever. Your introduction to IPR is therefore nothing to be very happy about. By the time you settle the issue, normally by making payment and buying an ‘Official’ copy and see the back of the policemen, you are so fed up; you wish you had never heard of IPR.
And yet the simple fact is that you may actually be sitting on a sound asset, a hidden treasure without even realizing it.
IPR’s Relevance is now easily understood, at least in some measure by every business big or small but its Reverence is hardly felt if at all.
I feel as regards the importance of IPs and IPRs the correct word to be used is “Reverence” instead of “Relevance”

Relevance means: closely connected or appropriate, but this does not suffice to define the importance and role of IPR in an SME business.
Reverence means: Deep Respect for someone or something and this is absolutely needed when understanding and dealing with IPR.

I revere a quote by the great Mexican Revolutionary Leader Benito Juarez…
It reads in Spanish: “Entre los Individuos, como entre Las Naciones, El respeto al derecho ajeno es la paz.”
Translated in English it reads: “Among individuals, as among nations, respect for the rights of others is peace.”

This is so true…, if everyone of their own accord respects the rights of others, then there will always be peace. This is exactly how IPR should be treated: with Reverence.., Respect others IPRs and protect your own IPR diligently. Have deep respect in understanding your own IPRs and know how you can protect them and enforce their protection.

Meaning of Intellectual Property:

Intellectual Property or ‘IP’ is a broad term that is used to describe the outputs of creative and innovative endeavors. It is described as ‘intellectual’ because it is the result of the application of the mind.
It is described as ‘property’ because, just like other property, it can be owned, sold and transferred, leased or given away.

Types of intellectual property include:

  • Patents (for new or improved products and services): A patent is a right granted by the governing body within each country in relation to an invention. The right allows you to exclude competitors from exploiting, or benefiting commercially, from the invention. Patent is a Registrable right.
  • Trademarks (for logos and brands): A registered trade mark can protect elements of your brand such as a product name, tag line or logo. In this way, the trade mark helps to distinguish a specific product or service from a competitor’s product or service. By doing so, this creates customer loyalty and enables the product or service to more effectively compete with other similar goods. Trademark is a Registrable right.
  • Registered Designs (for the shape or appearance of a product): A registered design protects the appearance and visual features of a product. It protects the shape, configuration, pattern or ornamentation which gives a product a unique appearance. Registered Designs is a Registrable right.
  • Copyright: Copyright comes into existence as soon as work is recorded in some way. This may be by writing, keyboard entry and storage on a computer’s hard disk, or making an audio or video recording. Copyright exists in the work itself, and is the exclusive right to copy, publish and distribute works, and to enjoy certain other rights, depending on the type of copyright work concerned. Some examples of works which Copyright may exist include software programs, databases, literary works, photographs, sound recordings and video recordings. In most countries, Copyright is not mandatory to register though registration serves as prima facie evidence when enforcing an action for infringement of copyright.In India Copyright is a Registrable right.
  • Plant Breeder’s Rights : Plant breeder’s rights are a right granted to a breeder in relation to a new variety of a plant. Plant Breeder’s Rights are Registrable.
  • Circuits Layout Designs: Circuit layout rights protect the layout designs for integrated circuits and computer chips which are central to the operation of many electronic devices. Circuits Layout Designs are Registrable.

Non Registerable Intellectual Property can be equally or even more valuable:

Confidential Information is information which has value and is not publicly known, giving your business a competitive edge that would be lost if it were obtained by your competitors. For example, this could include manufacturing know how and trade secrets, databases of customers, databases of suppliers or the functionality of computer programs.
These are all things which are intellectual in nature and a business should seek appropriate strategies to keep these items confidential.

Almost every type of business has some kind of intellectual property.

The term “IP” is not equivalent to the term “IPR” (Intellectual Property Rights), though the two are often used interchangeably. IPR refers to the rights related to IP. For e.g. an idea or an invention is regarded as IP whereas the right associated with such IP (i.e. a patent) is considered as an IPR.

Why should an SME identify its IP and how?

Often unrecognized .., the IP assets of an enterprise far outweigh their physical assets..,

A Properly managed IP Assets portfolio contributes to the enterprise’s growth in many ways:

  • a) It gives the exclusive right to prevent others from commercially using a product or service, thereby reducing competition and enabling the enterprise to strengthen its position in the market.
  • b) A well managed and protected IP portfolio helps you to recover your R&D investments and obtain higher returns on your investments.
  • c) IP Assets can be licensed or sold in full or in part to other enterprises in order to generate additional income for the enterprise. Owning IP assets facilitates in raising money for business needs through additional financing avenues.
  • d) Owning IP assets increases an enterprise’s negotiation power in many business situations and take corrective actions against imitators and infringers of its IPs
  • e) A well managed and protected IP portfolio helps grow your brand and increase your brand value over time.

A professionally conducted IP audit is the answer as it helps an enterprise identify and scrutinize its IPs and IPRs.

If you are conducting an IP audit for the first time, you may be surprised at how many IP assets your company has and how valuable they are to your business. Furthermore, an IP audit may uncover potential risks to your business that could ultimately result in costly legal proceedings with employees or third parties.

A well planned and executed IP audit will tell you:

  • Whether you own the IPs being used in your business
  • If you do not own them, whether you have adequate rights over them
  • Whether adequate steps have been taken to protect the IPs in relation to your staff and contractors
  • Whether there are any restrictions affecting your ability to freely use the IP, such as joint ownership.

You may need to minutely Investigate your entire operation to identify your IPs

Physical property or assets such as computers or machinery are easy to recognize, because they are tangible, and can be seen, touched and felt. A business can count its tangible properties.
But it is not that easy with intellectual property.
Because intellectual property is intangible, and cannot be seen, touched and felt, it can be perceived as a more elusive asset. The reality is that intellectual property is recognized as being amongst a business’s most valuable assets in today’s marketplace.
Day in and day out, businesses sell goods or services, but year to year they are building up ideas, goodwill and recognition linked to a brand, logo, product or standard of service. In reality they are building up value linked strongly to their IP assets. That’s why these assets need to be identified and protected.
Every kind of Intellectual Property be it registrable or non registrable when rightly managed is capable of adding good value to an enterprise and where there is value.. there is also taxation! And on this I will delve at a later date.., but I will leave you here on a positive note as regards taxation on IPs: Even non registrable IPs bring along benefits of tax depreciation!

You can write to me about your generic queries on IPR or General Legal aspects facing your Business I will be happy to orient you here in “TISA” Magazine. My objective is to empower the SME owner with knowledge about Law and Legal aspects such that it minimizes the scope of disputes arising and if in spite of all efforts when disputes do arise they are settled outside of litigation. Litigation is the very last resort – it kills productive business time and this many a times kills businesses. This situation can be well avoided when the SME owner is adequately educated about Law and his/her obligations under the prevailing legal systems thereby mitigating Business and its operational risks.

Almost every type of business has some kind of intellectual property.

The term “IP” is not equivalent to the term “IPR” (Intellectual Property Rights), though the two are often used interchangeably. IPR refers to the rights related to IP. For e.g. an idea or an invention is regarded as IP whereas the right associated with such IP (i.e. a patent) is considered as an IPR.

About the Author

Attorney Sumeet Sharma

Attorney Sumeet Sharma Chief Counsel at Adroit Global Legal Connect (AGLC), with 20+ years of International Legal practices; Corporate Legal Management Expert, Intellectual Property Management Expert, handled IPR registrations in 92 countries and actually worked in these Jurisdictions: India, UAE, China – Hong Kong, Singapore, UK, Spain, France, USA, Mexico, Guatemala, and Honduras. With major time spent in Mexico.

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