Intellectual property, and the issues surrounding its protection and use, have of recent picked interest in public discussions. This is a positive reflection of the growth in the creative and innovative industries. We have seen a growing trend of creative and innovative collaboration initiatives like K-lab, Collective Rwanda and Made in Rwanda. This growth spurt in the creative and innovative industries must be accompanied with increased focus and priority on issues of intellectual property rights protection
Three key issues emerge from the recent public discussions; Firstly, owners of intellectual property must be equipped with knowledge on how to protect their rights. Secondly, more information must be given to the general public on intellectual property-what it constitutes, its protection, use, and the role of different actors in protecting and enforcing intellectual property and finally, those who unlawfully use and benefit from others’ intellectual property must be heavily sanctioned in order to deter such behavior.
Intellectual property (IP) in very general terms is any creation of the mind. Over time, these creations of the mind have come to be categorized in general groupings such as; Designs, Brands, Inventions, Literary and artistic works. These general types of IP are protected by different types of rights. Often times, the public and even owners of IP are not aware of which right is applicable to a particular work or product and you’ll find an industrial design being referred to as a copyright or a copyright referred to as a patent.
It is no longer a debate that in today’s world, a firm’s competitiveness is more likely to be determined by its intangible assets such as IP than its traditional assets, e.g. stock, equipment. To take full advantage of the opportunities offered by IP as well as survive and thrive, businesses and individuals alike, must fully understand and engage in the entire IP value chain which encompasses; identifying your IP, protecting it, managing it and ultimately leveraging it for commercial gain. This article is part of a series that will explore in some detail, each of these elements of the value chain.
Identifying and protecting your IP
Most businesses will create or use IP regardless of the product or service they offer. It is important therefore to know what type of IP you have created and which rights protection is most appropriate. The Intellectual property law of 2009 categorizesintellectual property rights in Rwanda into two main types; Industrial property and Copyright. Some of the rights that fall under industrial property are: Patents, Utility models, Industrial Designs, Trademarks. Copyright covers; literary and artistic works such as; musical works, dramatic works, audio visual works, works of art, photography, works of architecture, computer programs. Handcrafts and folklore.
To obtain protection for your IP, you must register it with the intellectual property office in RDB. IP rights registration gives you the strongest protection against unauthorized use, copying or imitating of your IP. Unfortunately, many in the creative and innovative industries are yet to appreciate the importance of IP protection. Many cite high costs of IP protectionas a constraint. To reduce these costs, the government has lowered the registration costs. For instance, a trademark and industrial design application will cost you 30,000rwf. The issue of costs of protection and enforcement must always be considered in context of the tradeoff-you incur a cost to obtainexclusive rights and you will offset this cost through the potential commercial returns that derive from exclusive use.
Ultimately, whether or not to protect or enforce IP rights is a commercial decision but any business that seeks to become competitive and thrive cannot afford to ignore this aspect. The risks of not acquiring IP rights protection through registration are quite high. It is therefore very important to have an IP protection plan in the early days of starting your business.
In this article, we will examine the nature and protection of the most commonly used types of IP rights.
Trademarks: A trademark is a distinctive sign that identifies certain products or services as belonging to a certain entity. Registering a trademark is very important because it ensures that your products or services are differentiated from any others on the market, therefore creating a distinct brand identity. A trademark can be registered by an individual, a business or any other legal entity. An example of a local and well established trademark is the Inyange trademark which is a combination of words and a logo.
A common misconception is that a company name and a trademark are one and the same. Most business owners think that once they have registered a company/business and have a company or business name, this will prevent anyone else from using that name in their own products/services. A company name is the legal name of that company which must be used in all formal communication and in all legal transactions. It does NOT grant exclusive rights of use to the brands of your products and services. It is therefore very important for businesses to go a step further to protect their brands through trademark registration.
In order to successfully register a trademark, your application must show that the mark is distinctive, not imitative or descriptive. The mark is protected for a period of ten years which can be indefinitely renewed for periods of ten years each.
Patents: A patent is an exclusive right given to an invention that offers a new solution to a technical problem. Patents play a very useful role in the advancement of technological development because in return for patent protection patent owners are obliged to publicly disclose ALL the information on how the invention works. This adds to the body of public knowledge which inspires and informs future innovations.
An example of a local patent is ‘Tekutangije’, a cooking technology invented byIsidore Nizeyimana based on the principle of natural ventilation which increases the efficiency of a cooking apparatus while reducing carbon emissions and deforestation.
A patent gives the inventor exclusive rights for 20 years, however the patent owner must renew annually and pay an annual fee. Failure to apply and pay for annual renewal will result in a lapse of the patent. In the period of protection, the invention cannot be used, made, distributed or sold for commercial purposes without the consent of the patent owner.
If you have an inventive idea, it is very important to start planning early how to protect your invention because once the invention goes to market or is publically disclosed before filing for patent protection, it can easily and quickly be imitated and it will be difficult to prove that the invention is new. Studies have found that the average unpatented new product can be duplicated by 6-10 competitors in about 6months at less than half the cost of the original development.
In the early stages of product/process development, you can protect your idea through contracts such as non-disclosure and confidentiality agreements.
Industrial Designs: An industrial design is protection given to the aesthetic elements of a product. Industrial designs are applicable to a wide variety of industrial products and handicrafts, such as; watches,jewelry, textile designs and other luxury items and leisure goods. Industrial designs encourage creativity particularly in the creation of aesthetically pleasing products.
The industrial design is valid for 15 years and can be renewed for 2 consecutive periods of 5 years each. For an industrial design to be protected it must be new and original and it must not have any technical or functional value, it should be purely aesthetic. As with patents, one must not put an industrial design on the market or publically disclose it before filing an application for registration.
Copyright and related rights: Copyright is unique in the sense that it encompasses both economic and moral rights. Moral rights encompass the rights of the copyright owner to claim their ownership by having their name acknowledged in any public use of their works and to prevent any changes to their work which would harm their reputation. The economic rights grant the copyright owner exclusive rights to reproduce, translate, adapt, distribute, broadcast and publicly perform the works.
Copyright protection is automatic from the moment of creation of the original works and therefore registration is not compulsory. However, registration can be very useful in the event of disputes of ownership. Registration of copyright is free of charge and the duration of copyright protection granted lasts the lifetime of the creator and 50 years thereafter.
In the process of identifying your IP and obtaining the appropriate protection, there are a few general principles of IP that are important to know.
Intellectual property protection is territorial. That means that your IP is only protected in the nation/state in which it is registered. Therefore, if you want your IP protected outside of Rwanda, you have to register it in the different countries in which you would like to have protection.
To streamline this process, Rwanda has ratified key international treaties which enable an applicant to acquire protection in multiple countries through a single application. For further information on this, we urge any interested person to visit the office of the Registrar General in RDB for further information.
Rwanda follows a ‘first to file’system, which means whoever files an application for industrial property right first is considered as the rightful owner.
All applications for an industrial property rights must be done through an agent. Currently, any lawyer who is a registered member of the Rwanda Bar Association can act as an agent.
You must have a plan to manage the ownership rights of any IP created during the term of employment or contract.It cannot be assumed or implied that you will have ownership rights over works created by your employees or contractors. You should have clear and written agreements that clearly delineate who owns the work.
Finally, once you have identified and protected your IP’s, you must also be aware of others IP rights and respect them as well. When you’re developing anything for your company, whether it is your website, adverts, brands product itself, it’s crucial to be aware of others’ IP. Make sure you don’t copy or imitate existing works otherwise you might be infringing on a protected work.
In the next article, we will look at how to manage and enforce your IP. There will always be free riders who will want to benefit from a successful, brand, design, original work or invention. Whilst protecting your IP rights commences with securing protection, it does not end there- it is equally important to enforce these rights against infringers and counterfeiters. IP owners must be proactive and vigilant in maintaining and protecting their intellectual property. We will share some practical tips on how you can effectively monitor your IP.