A2 Blog Legal

Intellectual Property: Trademarks, Copyright and Patents

Let’s start with some household names: Coca-Cola, Dyson, and Prince; a beverage producer, a technology company, and the late great singer and musician. These two companies and one legendary singer are perfect examples of the value of intellectual property. From the standpoint of a small to medium-size business, protecting your intellectual property is as important as locking a safe at night. Intellectual property holds value; it can be leveraged, used as collateral, provide exclusivity and market dominance, and though intangible it is an appreciable asset for your company.

Coca-Cola can walk into just about any financial institution and secure $53.7 billion (1) with nothing more than its registered trademark. Dyson Technology files patents every week and once approved its revolutionary centrifugal technology is exclusive there’s to produce for 5 years. The estate of the late singer Prince recently sued a man in Massachusetts for the use of recordings of Prince’s performances which they say have contributed to or resulted in the generation of revenue as the person’s video contained advertisements. That is the value intellectual property. Incidentally, they are examples of trademarks, patents and copyright so I’ll take them in turn.

Trademarks

Trademarks in The Bahamas are a legal product of the Trade Marks Act. By definition, a trademark is a symbol, word or words that are legally registered which represent a product or a company by use. Think of the film “Coming to America” – McDonald’s and “McDowell’s”. You can make French fries, burgers, apple pies and sundae’s but you can’t use the Golden Arches, or you’re purporting your product to be a McDonald’s product.

Bahamian’s are very brand loyal, and it is this type of brand recognition that makes trademarks so valuable. How many times have you gone to the grocery store and seen 8 different brands of rice, but you still put the Mahatma Long Grain Rice in your shopping cart? Trademarks attach to quality; it is the hallmark of the product or service being offered.

There are certain criteria for registering a trademark (2) which largely revolve around uniqueness, distinction, and creativity. Most importantly, the mark must be adapted to distinguish the goods of the proprietor of the trademark from those of other persons. Once a trademark is registered the owner is given a Certificate of Registration, you can license the use of your trademark to generate revenue, increase distribution and any unlicensed use of the trademark is actionable in Court.

Copyright

When you print, publish, perform, film, or record literary, artistic or musical work your mechanism of protection is copyright. Copyright is more easily understood as the protection of expression. This is best explained by comparison to patents. A patent protects ideas. The idea for a new engine is protected by a patent (which I will discuss in more details), but the design; drawings, models and so forth are expressions and thus protected by copyright.

Prince was an iconic musician, artist and performer who was legendary for his vocal range, multi-instrument capabilities and his stellar, colourful and energetic live performances. When someone says Prince, you think Purple Rain, When Doves Cry, 1999, and the list goes on. His artistry was his expression and he, therefore, had copyright protection over just about every element of his work.

A man in Massachusetts uploaded videos of some past Prince performances, and in these videos, there were advertisements for certain things. We can all relate to the allure of a video on YouTube only to be bombarded by ads for grammar apps and wellness routines. These ads generate money; the estate of Prince essentially alleged that the traffic to this user’s page was driven by the videos of Prince’s performances and this was allowing the page owner to generate revenue. This is a breach of copyright, as he didn’t have permission to use recordings of Prince’s expressions for this purpose.

Copyright is effectively an automatic right that you can assert over your creative expression. It is also a right that attaches to the actual life of the author or creator and subsists for up to 70 years (this varies from jurisdiction to jurisdiction) after the life of the author.

Patents

The Industrial Property Act is the governing legislation for patents in The Bahamas, which largely mirrors older legislation from the United Kingdom. A patent gives an inventor a five (5) year exclusivity period for the manufacture and production of the invention which is protected by the patent.

It is a bit of a bizarre form of intellectual property protection as you have to file comprehensive plans which illustrate exactly how the invention was built, full specifications, and dimensions such that someone else could replicate your invention using these plans.

Not every invention is patentable, however. In order for your invention to be eligible for a patent, it must be new and involve an inventive step. The legislation qualifies “new” as an invention which does not form part of the state of the art. A vacuum cleaner is not in and of itself patentable, but a Dyson centrifugal vacuum motor is as there have been vacuums in existence for decades but none which used centrifugal technology.
If you create something novel, it is a worthwhile investment for your small to medium-sized enterprise to consider patent registration. This increases the value of your invention and provides a layer of exclusivity that is commercially beneficial.

If you have any questions or need professional advice or consultation feel free to reach out to me on my social media handles. Next up, the importance of Non-Disclosure Agreements to small-medium size businesses. Thanks for reading!

 


1.  As of 2018

2. Section 7 of the Trade Marks Act; the name of the company, individual or firm represented in a special or particular manner; the signature of the application for registration or some predecessor of his business; an invented word or words; words with no direct reference to the character or quality of the goods that is also not a signification of a geographical name or surname; any other distinctive mark, but a name, signature, or word or words, other than such as fall within the previous descriptions.

Leave a Reply

Your email address will not be published. Required fields are marked *