You have all good reasons to start exporting but how will you ensure that your trademarks, patents, copyrights and trade secrets are safe abroad? With the existence of Free Trade Agreements, your business may want to expand to other markets either regionally or internationally to bolster its competitiveness and position itself in those markets. One of the risks involved in such an expansion is Intellectual Property (IP) infringement, either by you or the other party. It is therefore important to identify the types of IP rights your business owns (be it copyrights, trademarks, patents, industrial designs or even trade secrets), understand the laws and requirements of the country you are expanding your business to, identify potential partners who you could commercially exploit your IP with by either licensing or assigning the rights to them, and identify your competitors in that country.
It is possible to protect your IP regionally or internationally. One should however note that Intellectual property rights are territorial, meaning, once you register your IP in your own country, you are not protected in another. Protection differs depending on the type of IP.
- Copyright: For Copyright, which protects literary and artistic works such as books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps etc., protection is automatic. The moment you create the work and place it in a tangible form e.g., in a CD, book, paper etc., it is protected under copyright law. It is however advised to register your copyright to help in solving disputes and proving ownership. Since copyright is automatic, it is protected internationally in Countries that are signatories to the Berne Convention without the need for registration. Therefore, when doing business with countries that are not signatories to the Berne Convention, you should ensure your copyright is protected in that country.
- Patents: Patents protect inventions such as processes for developing or doing things, products, chemical compounds or compositions and machines/apparatus. Patents are territorial; therefore, to protect internationally, you need to make separate patent applications in the countries you would wish to do business in, or file a single international application under the Patent Cooperation Treaty which is a filing system that allows one to file one single application designating the countries you want your invention protected in, instead of filing separate applications. To protect your invention regionally, you need to make a single application designating the countries you would want to do business in and file through African Regional Intellectual Property Office (ARIPO) to designate English speaking countries in Africa or OAPI to designate French-speaking countries in Africa.
- Trademarks: They protect signs, logos, numbers, letters, words, colours, shapes etc. Just like patents, you have to make separate Trademark applications in the countries you want to do business in. You can also protect internationally by filing through the Madrid system using one application designating the countries you wish to protect in, and regionally, by making a single application designating the countries you would want to do business in and file through ARIPO or OAPI. This should be done through an agent or legal practitioner.
- Industrial designs: Industrial designs protect the aesthetic appeal of a product. How the product looks. Since Kenya is not a member of the Hague Agreement which provides a system for filing a single international application, to protect your design internationally, you will have to file separate applications in the countries you would wish to do business in internationally. To protect your design regionally, you need to make a single application designating the countries you would want to do business in and file through ARIPO or OAPI.
- Trade secrets: Trade secrets are confidential information owned by a business. They must be of commercial value, known to a limited group of persons and kept secret. They are not registered hence they have no formalities. To protect your trade secrets, you need to ensure confidentiality agreements are signed by all the parties you are doing business with.
It is advisable to seek the services of a qualified Intellectual Property Professional when expanding your business to another country. Protecting your IP regionally or internationally is just as important as protecting it in your own country