By Phillip Chichoni
A fortnight ago a jury in the US decided against South Korean industrial giant Samsung in a long-running and bruising patent fight with Apple Corporation. The two giants are accusing one another of stealing the other’s designs and ideas for mobile phone gadgets. The victory for Apple raised its share price immediately to position it as the biggest company in the world in terms of market capitalization.
For Samsung on the other hand, although the billion dollar fine is small change considering its huge size, the judgment hits them in the market where business really matters. Apple may apply their rights and seize affected Samsung smartphones from shops in the US.
The decisive factors in this case were the patents which the companies filed in protection of their ideas. Many entrepreneurs lost their ideas to others who went on to make millions from them. Some Zimbabwean financiers have been accused of stealing the ideas of entrepreneurs who submit business plans to them. The sad thing is that these bankers would decline financing entrepreneur on one pretext or another, only to find that idea starting up as someone else’s business.
There are three basic ways you can protect your intellectual property, which is the name for your ideas whether they are names, designs, music, writings, logos and so on.
1) Register a patent. If your business is built on a truly original idea, one of the first steps you need to take is to get a legal protection of that idea. The Patents Act (26:03) and the Industrial Designs Act (26.02) offer protection for intellectual property. A patent is the exclusive right granted by the government to an inventor to manufacture, use or sell an invention for a certain number of years. Once you have patented your product, no one else is allowed to copy it. Apple and Samsung both filed patents for different designs, processes and functions of their mobile devices. That’s the reason they are able to approach the courts to stop one from copying the other’s designs.
2) Copyright protection. Copyright is granted to the person or organization that creates published artistic work, which includes writing, film, music and computer software. Unlike most other forms of intellectual property, copyright is granted automatically when the work is first published. The Copyright Act (26:01) governs this form of protection in Zimbabwe. When you create a literary, dramatic, musical or artistic piece of work, you will be granted copyright automatically. If someone you employ creates this for you during their normal course of employment, then you will own the copyright unless an agreement has been signed stipulating otherwise. Copyright covers works such as company documentation, software, songs, original paintings, drawings or photographs. Copyright also protects sounds recordings and films. If you own a copyright, you can decide whether to:
- allow other businesses or people to use the copyrighted work
- allow work to be copied, adapted, published, performed or broadcast
- allow other businesses to use work for a royalty or license fee
- sell the copyright
3) Trademarks. These are symbols that differentiate between goods and services and can be logos or brand names. Trademarks set apart your products and services as different from other suppliers. They can be signs, logos, words and names, and there are rules on what can and cannot be registered as a trade mark. Trademarks are highly valuable and can be a major influence on your marketing and your recognition in the market place. A trademark may be designated by the following symbols:
- ™(for an unregistered trade mark, that is, a mark used to promote or brand goods)
- SM (for an unregistered service mark, that is, a mark used to promote or brand services)
- ® (for a registered trademark)
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. The owner of a trademark may initiate legal proceedings for trademark infringement to prevent unauthorized use of that trademark. Most countries require formal registration of a trademark as a precondition for pursuing this type of action. A few countries, including the United States and Canada, also recognize common law trademark rights, which means action can be taken to protect a trademark that is in use but not registered. Generally, common law trademarks do not offer the holder as much legal protection as registered trademarks.
The process of protecting your intellectual property may be complex and is best handled by professionals. Your business consultant or accountant will assist you in this regard.
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