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Common Intellectual Property Misconceptions

February 28, 2022
How well do you understand intellectual property matters? While many people may have a general idea of what patent, copyright and trademark rights protect, there is still a lot of misinformation surrounding the topic.

Here, we debunk a few of the most common misconceptions around what intellectual property rights confer and whether to pursue them or not.

1. COST

People generally think that to go about protecting their intellectual property in Africa means forking over huge and recurring costs. This cannot be more untrue. Africa has the advantage of having 2 regional organizations, the African Regional Intellectual Property Organization (ARIPO) and the Organisation Africaine de la Propriété Intellectuelle (OAPI), committed to encouraging IP owners' usage of the IP system. Moreover, a single application with these organizations can protect their IP in all the respective member states of the organization with a total of 35 (patents & designs) and 28 (trademarks) countries covered.

What is more expensive is delaying or NOT protecting your IP. Your brand is as vulnerable to IP violation as any other biggie out there in the market.

2. DOCUMENTATION

Another common complaint from business owners and inventors, is that the process for filing for IP protection entails too many documents. Aside from translations where required, and notarized power of attorney documents, the application process for patents, trademarks and industrial designs is very straightforward.
If the outcome is a granted patent, or trademark for your business spanning decades, and covering multiple jurisdictions this seems like a small compromise.
For a complete breakdown of documentation required visit our AfricaIP Guide™ on our website where we break down country specific requirements. As always, feel free to reach out to us if you have any questions.

3. COMPETITION

"We're a small-scale business. We don't need such protection? Also, we've already registered our company name. Why would we need a trademark?"

We've all heard these statements umpteen number of times, especially from SMEs. Business owners base the decision to protect their IP on the size of their current business without thinking of the scale of their future operations. Any competitor of yours watching your business expand will beat you to it and claim your ideas as their own legally.
Intellectual Property Rights protection prevents firm innovations from being exposed without any kind of protection and explored by competitors, giving the companies a portion of market power and, sometimes, monopoly power, materialized in the exclusive use and commercialization of their innovations, since they are legally protected from potential violations.

4. ENFORCEMENT

People often argue that having the necessary IP protection in place is pointless if you cannot afford to enforce it in the event of infringement.
Take a patent for an invention, for example. To begin with, if the patent is well drafted, determining infringement can often be fairly clear cut and the costs of enforcement minimized. Secondly, it's important to remember that while you may not have the money to enforce your rights the other party might do. In this case, having a patent in place provides leverage to the owner to negotiate with the infringing party. Thirdly, when it comes to litigation, a well drafted patent strengthens your case against the third party and IP attorneys are more likely to take on the case in court.

5. COLOUR

Colour is an important aspect of trademarks. When you register a trademark you can claim all the components of the trademark including the colours applied. This means that not only do you have exclusive rights to the trademark in that colour but if a rival or competitor was to copy your trademark even in another colour, you have the right to take legal actions against that third party based on trademark infringement.

Claiming rights to colour depends on the jurisdiction where you apply for the trademark. Some jurisdictions require express declaration of claim over the colours included. Additionally, it’s worth noting that acquiring a trademark that gives you rights to the colour elements as well, can be limiting. In most jurisdictions, it is generally recommended that colour not be claimed in a trademark, thus allowing the owner to use the trademark in any combination of colours in the future.

At AllThingsIP Africa we connect foreign businesses with resident IP attorneys and agents in every African jurisdiction, with all-inclusive competitive fees.

We’re here to help navigate the African IP landscape, so feel free to get in touch with us, should you have any questions or assumptions that need clarifications.
AllThingsIP Africa