The expression Intellectual Property indicates the general statement that protection of creative ideas and expressions of the human mind that have commercial value. Along with human creativity and inventiveness, intellectual property is all around us.

The main Intellectual Property Rights are: patents; trademarks; copyright; design rights and registered designs; confidential information (know-how and trade secrets). Starting from a marketing strategy campaign, this should establish a clear link between your products or services and your company, as the producer or provider of such products or services. That is to say, customers should be able to distinguish, at a glance, between your products or services and those of your competitors and associate them with certain desired qualities.  Trademarks in particular, can be crucial to achieve such a result.

In fact:

(a)   trademark is the most important tool for traders to differentiate their goods from those of other traders.

(b)   trademarks provide the consumer not only with reassurance as to the origin of the products but also as to other features such as quality, luxury or economy.

(c)   The diminishing differences between products in terms of quality and ingenuity have accentuated the importance of trade marks and in particular, brand loyalty, to manufacturers and retailers.

(d)   Brand loyalty presupposes the existence of a trade mark to which such loyalty can attach. Trade mark creation, management and protection is, therefore, critical to any business seeking to obtain and maintain brand loyalty and ensure commercial success. 

Intellectual property combined with other marketing tools (such as advertisements and other sales promotion activities) are crucial for:

• Differentiating your products and services and making them easily recognisable;
• Promoting your products or services and creating a loyal clientele;
• Diversifying your market strategy to various target groups.

The strategic utilisation of intellectual property assets can, therefore, substantially enhance the competitiveness of your company. In many situations, licensing of intellectual property rights is an effective tool for expanding your business goals. A licensing agreement is a partnership between an IPR owner (licensor) and another who is authorised to use such rights (licensee) in exchange for an agreed payment (fee or royalty). A variety of such licensing agreements are available.As an intellectual property owner and a licensor, your company can expand its business to the frontiers of your partners' business and ensure a steady stream of additional income. As a licensee, your company can manufacture, sell, import, export, distribute and market various goods or services which it may be prevented from doing otherwise.

All of these mechanisms either on their own or in combination will provide your company, as a licensor or licensee, a wide variety of possibilities in conducting business in your own country or elsewhere.  To remain ahead of competitors, business entities must either continuously introduce radically new products and services or make small improvements to the quality of existing products and services. For this reason, innovative and creative ideas are at the heart of most successful businesses. Ideas by themselves, however, have little value. They need to be developed, turned into innovative products or services and commercialised successfully so as to enable your company to reap the benefits of your innovation and creativity. Intellectual property rights, patents in particular, can be crucial for turning innovative ideas and inventions into competitive products that significantly increase profit margins. In addition, your company may use patents to earn royalty revenue by licensing such patented inventions to other companies that have the capacity to commercialise them. This may provide you with a stream of income from your invention or the inventions of employees of your company, without the need to invest in its commercialisation. 

Patents are available for most industrially applicable processes and devices. Patents can cover: Mechanical devices, for example, mousetraps. Methods for doing things, for example, methods for dyeing or bleaching fabrics. Chemical compounds, for example, a new drug.  Mixtures of compounds, for example, an improved hand cream. A patent confers a monopoly right as it prevents others from operating within the scope of the patent claims, even if others developed their own technology wholly independently of the patentee and were wholly unaware of the existence of the patent or of the product or process which the patent protects. In contrast the law of confidential information cannot be used against independently developed technology. Your company may also use trade marks to earn royalty revenue by licensing its trade marks to other companies that have the capacity to manufacture and sale products suitable to bear your trade marks.

As far as trademarks are concerned, the registration confers on the proprietor the statutory right to the exclusive use of the mark in connection with the goods or services for which it is registered.The registered proprietor can authorise or license others to use the mark but, most importantly, registration gives the proprietor the right to sue for trade mark infringement any person who uses an identical or similar mark in connection with identical or similar goods without authorisation. There is no requirement to prove reputation or goodwill. In certain circumstances the proprietor can prevent use of an identical or similar mark on dissimilar goods. The Register of Trade Marks is open to the public and so registration acts as notice to the public of the proprietor's rights in a particular mark and, therefore, has a deterrent effect. Where a mark is unregistered, the owner has to look to the common law for protection and must rely on a passing off action to prevent infringement of his mark.Passing off actions are notoriously time-consuming and expensive. To succeed in such an action, the proprietor must produce evidence of his ownership of goodwill or reputation in the mark, and evidence that the unauthorised use of his mark amounts to a misrepresentation which is causing, or is likely to cause, damage. 

Finally, a registered design confers a 25-year monopoly right in the design. Registration gives the exclusive right to make articles incorporating the design, allowing the owner to sue for infringement even where the defendant did not copy the design. If a registration is not obtained, the owner of the design would need to depend on:

ü  design right, which only lasts for ten years from the end of the year of first exploitation; or

ü  where applicable, copyright (for example, where an artistic work is involved).

In the case both of design right and copyright, the owner would need to prove that the defendant had copied the design in order to succeed in an infringement action.