TIMES HAVE CHANGED

What was known of entrepreneurs prior to Zimbabwe’s Independence was a man who owned a small shop, a haulage business with a single vehicle or pursued trade with one assistant. Coupled with a handful of entrepreneurial elites which concentrated on transport and retail trade, was the extent of black businesses  according to the history and business culture of entrepreneurship in Zimbabwe. Entrepreneurs have since emerged from every sector of the economy and business has become extremely competitive. It has become critical that companies implement the best ways possible to increase their market share in the most cost-effective manner. Emerging SMEs in farming for example, may consider giving up individual identities for their products and consider collective brands so as to jointly distinguish their product and market according to the geographic origin of their product on global or regional markets.

Back then it was easy to identify certain businesses by the surnames of their proprietors as they were very few in the market. A reading of prominent entrepreneurs such as Denis Makomva, Aiden Mwamuka, Philemon Machipisa and Paul Matambanadzo amongst others seems to suggest that who the owner of the business was, seemed enough for one to distinguish a particular product or service. Their buses for example would be easily known even by just the routes they operated in and maybe without paying close attention to the branding of their buses or shops. There were the occasional slogans engraved on the buses or shops such as Josephat’s Ruredzo’s first bus, “Kuwadzana Masimba” (Together we are strong) but that’s as far as it got in terms of use of intellectual property. Modern SME’s have to include intellectual property in their business strategy as IP has become part of a number of businesses.

CHOOSE WHAT WORKS FOR YOU

Not every form of intellectual property is applicable or is suitable for every business. An SME should be able to select and choose the most suitable IP regime (s) which it intends to seek protection for its products. The process of protection of your intellectual property comes with a cost and requires a significant investment. Given the small scale of production, many SMEs would need tact and a cost-effective strategy in the protection of their intellectual property. Products with a longer development and production cycle and where companies have expended high research and development costs for example may seek patents since they would ensure a much longer period of exclusivity (twenty years) within which the cost of the investment can be recuperated. Legal advice becomes very necessary when making some of these decisions.

TIMING IS EVERYTHING

Success in the world of innovation is all about getting your timing right. No one person has the monopoly of thinking. Whilst you are brooding on an idea, someone may also come up with something similar and rush to the market or to obtain the legal rights before you do. In many jurisdictions intellectual property rights are granted on a first come first serve basis. The first person to file an invention for example, is the one who will walk away with the intellectual property rights. The importance of securing and protecting your intellectual property from the beginning of the business is of utmost importance to an entrepreneur.

SILENCE IS GOLDEN

Sometimes when you are unsure about implementation of an idea, all you have to do is to keep quiet and keep your cards close to your chest. That ability in itself (of keeping secrets) is a means of protecting your intellectual property under what is called a trade secret. As long as the information that you keep has commercial value, has not been publicly disclosed by its holder and as holder of the secret you have taken reasonable steps to protect, then this would qualify as a trade secret. Manufacturing processes, ingredients, business strategies, formulas etc. can all be considered trade secrets. There is no formal procedure for protecting trade secrets, as long as the information is not generally known or readily accessible to circles that would deal with the kind of information in question then your secret is protectable as a trade secret. All you are expected to do is to take reasonable steps to protect the secret. Including confidentiality clauses in employee contracts and making all potential business partners sign non-disclosure agreements are practical steps that can be taken to protect trade secrets.

ACCESS TO MARKETS

Making products known among consumers requires a significant investment and should be done effectively. Once your product/service has been branded, it is wise to obtain a trademark in the markets that you intend to trade in. A trademark distinguishes your product from a competitor’s product or service and will assist you to create value on the product. Obtaining consumer recognition and customer loyalty comes from associating a particular trademark with a certain quality and characteristics. It becomes much easier to gain access to retail stores, local, regional or global markets, distribution networks if you have sought a trademark. Purchasing decisions are based on preferred brands with known characteristics or quality. With a secured trademark it becomes worthwhile to develop a powerful marketing campaign that will enable an SME to position its products and create a reputation for its goods that will attract consumers.

E-COMMERCE

Where a product was only sold and existed in the physical realm commerce has introduced a viable trade system in the digital space. This has not only broadened markets, but it has also created problems for SMEs in enforcing their intellectual property rights. It has become effortless for trade, creative works and innovations to cross international physical boundaries with one click of a button. Legitimate brand owners can lose sales to a competitor on Facebook or Instagram marketing pirated and counterfeits of your original designed work and this can pose a serious threat to the existence of your business. Intellectual property is the backbone of a lot of modern-day technology businesses which operate online. SMEs need to constantly find new ways of protecting their businesses on the internet, as they run the risk of losing their businesses should any unscrupulous third party violate their intellectual property rights.

OWNERSHIP

Whilst ownership of intellectual property rights is important for enforcement of rights not every SME should “personally” own their IP rights and commercially exploit same. Owning an IP right when your business cannot afford it may just be a way of adding unnecessary cost on your books. Sometimes a small business loses nothing by entering lucrative commercial arrangements where they either licence technology from intellectual property holders, enter into franchising arrangements or they can simply licence their IP to larger corporates who can afford protecting and managing the intellectual property rights in question. This can assist SMEs to penetrate markets it could not otherwise serve and aid the intended commercialisation of IP rights.

CONCLUSION

Protection of intellectual property assets is not an end in itself. It will all boil down to how you commercialise your IP as an SME and how you exploit or utilise your IP to generate revenue and leverage the market. This is the only way an SME can fully benefit from protection of its IP. Understanding the intellectual property laws of a given market is key. Whilst you may run the risk of having your own IP infringed, businesses also need to be mindful of infringing the IP rights of others on the market. Getting the right attorney to give you the correct advice will also go a long way in ensuring that protection of your IP is beneficial to your business. Thinkers need a safe environment to thrive. The law needs to aid their existence and enable entrepreneurs to freely work their ideas and derive the value and compensation for their ingenuity.

BRENDA MATANGA

HEAD OF PRACTICE AND LEAD ATTORNEY: BMATANGA INTELLECTUAL PROPERTY ATTORNEYS