PROTECTING YOUR STARTUP FROM INTELLECTUAL PROPERTY THEFT

A few months ago, Inventa International, a global intellectual property (IP) firm that offers services to international companies doing business in Africa, partnered withLagos-based law firm, Silvax Legal, to offer affordable IP services to Nigerians.

With this partnership, they hope that more Nigerian businesses, especially the small ones, can protect that brands and ideas, seeing as the price barrier has been let down a little. But the fact is, not many people even know what IP law is or the areas it covers. This means that there are a lot of companies – startups included – that are not properly protected from having their brands or ideas stolen.

Bankole caught up with Angela Adebayo, the Managing Attorney of Silvax Legal/Inventa International Nigeria, and got her to talk about the basics of IP protection, how it relates to startups and the services her company offers to their clients.


TechCabal: You mentioned that there are three types of intellectual property. Please expatiate?

Angela: I think it’s important to first note that the three major types of intellectual property are territorial. First we have trademarks, which is something like your company logo, or if you have a brand, then it’s the name of your brand. It’s your brand identity, as it were.

Then there’s copyright. Now, there are different types of copyright protection. There’s literary, artistic, and musical works. I think your question was relating more to literary copyright – how far a written work is protected.  Copyright is the only type of intellectual property that is actually inherent. That is, if you write something and you publish it, then you own the copyright in that ownership. For everything else, you actually have to file for protection for it.

Patents are the third type of intellectual property. They are for when you want to release inventions.  Those are the three major types of intellectual property.

 

TechCabal: What remedy does a startup have against another startup that banks on its popularity? I’ll give a scenario – when TechCabal became interesting and created a brand, we started noticing people would do stuff like “JobsCabal” “ArtCabal” “BusinessCabal”. All those things never quite caught on, but in theory, if one of these were actually by a savvy entrepreneur who could grow the business, that would be very problematic because people keep associating those things with us.

In that case, what happens is that, even if you’re not suffering any detriment in that it does not directly affect your business, it makes it look like there’s an association between your business and their business. And that is them trading off the goodwill of your business, because yours is the one that’s established. It’s the one that’s well-known, and people will think, “Oh, look, TechCabal has moved into fashion, so we should use them.” That, in its purest sense, is actually trademark infringement, if the words “Tech Cabal” are registered as a trademark.

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If they’re not, then you have a common law claim for passing off. The requirements are pretty much the same, it’s just a lot easier if you’re registered as a trademark, because you have evidence. That means you would have a claim for trademark infringement and you would actually be able to stop them from being able to use it, because you would take them to court.

 

TechCabal: How long do these things take before I can get an injunction to restrain someone from infringing on my copyright?

Angela: I think it’s important not to focus on what happens when there’s a problem. You should focus on how best to protect yourself right at the beginning. Because a lot of people start businesses, especially startups, and because they are registered at the CAC, they think that they’re fine and they’re covered.

If you cover yourself on all fronts and get all of these things sorted right from the beginning, the remedies available to you would be a lot more accessible than if you didn’t do these things at the beginning.

Usually what you should do when you start your business is register your trademark, brand your website and write at the bottom, “this is the property of so and so.”  The mistake that I find that a lot of people make is they think because it’s not mandatory, it’s not important. But it totally is.

A real life example is the Coca-Cola bottle. The Coca-Cola bottle has been registered since the company started like a hundred years ago. Now, it is absolutely impossible for any other company to decide they’re going to make a bottle in that shape. Their brand protection is so strong, and it’s so widely known, that it’s protects them totally and that is all trademark law.

 

TechCabal: Obviously, prevention is better than cure, but what is the cost of prevention? Most startups are bootstrapped, and don’t necessarily have structure, talk less money. So on the scale of preference, these things, like legal advice, tend to rank low. Now, if a few knew it would cost a certain amount and saw it as an investment…

Angela: Like I said earlier, because it’s not a mandatory requirement, people don’t think it’s important. What I think is interesting or special about my company is that we do really want to bring it to everybody.

In this country, IP protection is under the purview of law firms. So I wanted to do things a little bit differently. Law firms can be very expensive in terms of their cost because, you know, there are these big law firms that charge a lot of money. The way that we’re doing it is that we want everyone to realise that it’s very important and because of that, it’s not as expensive as it ordinarily could be.

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Also, if we look into things like trademark protection, you pay once and it lasts for seven years. Then you renew and then it lasts for 14 years thereafter. So it actually lasts for a very long time for relatively not very much money.

 

TechCabal: So are your services accessible in a way that is structured or measurable and not like consulting? Because consulting is very stressful for people in the tech world. You have to go sit down with someone, have a conversation then have a meeting, and try to determine what works. Is there some sort of structure that lets people know what they see is what they get?

Angela: Yes, there is. I mean, it’s an industry that is regulated. There are official fees that we pay to the government. That information is public so everybody knows how much it is. To be fair, you can come in and say this is what you want to do, and I’ll tell you how much it costs. That’s sort of how it works. I don’t charge for the initial advice that I give you the first day. You come in, you tell me about your business, and I tell you you can do this and this, and this is how much it costs.

With patents, it’s slightly different because what happens with patents is it has to be in a certain form in order for us to apply for a patent at the patents registry. In Nigeria, to be an Intellectual Property lawyer, you don’t have to know how patents work; we’re lawyers and not engineers. In other countries, it’s within the purview of engineers.

Inventa is interesting because we have a team of engineers and a team of draftsmen, so if you come in and give us the paperwork, we will transfer it into the way you can do it to register and that is at a cost.

 

TechCabal: How do you determine what qualifies for patent?

Angela: There’s a patent law in this country that tells you what can qualify as as a patent. And the most important thing is the fact that it must be new and it must be a secret. A lot of times, what happens is, some people come and say they have invented something and we have to tell them that’s not new.

A patent has to be new, it has to be novel and it has to be not available in the market. It also has to have an industrial application. This means it has to be able to be used in the market. It can’t just be, “I’ve invented something, here you go, let’s file it as a patent”. It’ll be refused.

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TechCabal: An interesting case that has happened recently is Mi-Fone obtaining an injunction restraining Xiaomi, the owners of the Mi brand in Asia, from selling Mi devices in Nigeria, and I understand that they are trying to also obtain a similar injunction in Kenya. That, for me, highlights the potential problem with jurisdictional questions. How much protection do I get when I register my trademark, or do I have to register in every country in the world?

Angela: To be honest with you, the flippant answer is yes. Intellectual property is territorial. If you are going to protect your patent in Nigeria, it’s protected in only Nigeria. It’s not protected anywhere else. The good thing, or the interesting thing, about it is we now have conventions.

We have reciprocal agreements with different countries. How it’ll work will be, if you do a treaty application or convention application in one of the convention countries, then it sort of gives you an edge when you register in Nigeria. It does not mean that you don’t have to register in Nigeria – you absolutely do. It just means it’s already been accepted, it has the same date as the prior application as well.

 

TechCabal: How is the market responding? Are there startup entrepreneurs knocking down your door asking for advice?

Angela: The market is responding very well. I do think that since we’ve started, we’ve had a lot of people. Especially people who are just starting their own businesses and are starting to think, “This is something that I want to do.”

We’ve had interest on the other side of the spectrum as well. I’m talking about big businesses who have never thought about things like registering their trademark or protecting their brands. So it’s actually very interesting.

Another thing that I get a lot is that people don’t think it’s affordable, but actually, it is semi-affordable. Because like I said, it isn’t cheap legal service. Legal services, in general are not cheap, if I can use that word.

One thing I would like to point out is, this is an avenue where people think they can do it themselves. You can, but I would not recommend that you do, because we’re talking about working with government agencies. So I really think it’s important to use someone who knows what they are doing. I mean, I’ve been doing it for 9 years so definitely, I know what I’m doing.


If you would like to find out more about IP services for your startup, you can contact Angela Adebayo on +2346062766077 or email nigeria@inventa.com

TheFounder Magazine

Made Of Founders

TheFounder Magazine is an online business magazine that focuses on starting, running and growing a business in Kenya today

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