International Risk Management: Safeguarding Intellectual Property Rights

International risk management is the mechanism by which individuals and entities  engaging in cross-border trade in goods and services assess and handle the possibilities of threats to their businesses.  As a result, the level of risk will vary depending on the entity, its trading partners and the physical commercial space in which it operates.

The possibility of loss due to external influences is a reality faced by all businesses no matter their size and the more familiar of these range from unfavourable weather conditions, unstable financial environments and disturbed political climates.  It is extremely important to understand that trading in international markets requires some long term planning.  One must truly seek to make oneself aware of the risks to be managed in the new environment by carrying out the appropriate feasibility studies and really “getting into the nitty-gritty” of not only the advantages but also what could go wrong.

The protection of intellectual property rights (‘IPRs’) is an area of business that is many times still avoided by the business community.  Some cite the cost of applying to register trademarks and industrial designs in each jurisdiction as a deterrent, as IPRs are territorial and therefore registration in one country does not necessarily mean that your rights in another country are protected.  Other concerns expressed are the time it takes to complete registration as some processes are notoriously slow and in some countries it may take as long as three years for a certificate of registration to be issued.

In spite of the foregoing reasons for apprehension, which are indeed legitimate, it is imperative in today’s world that one’s IPRs should be protected at all costs.  Imagine the potential money, brand goodwill and reputation and business opportunities which may be lost in the discovery of counterfeit goods?  While in the Caribbean we are aware of the phenomenon of fake goods being sold on the streets and in the stores of many popular areas of the United States, especially those frequented by tourists, those instances are not unique to that country.  Within the last year stories about police raids and court cases from Jamaica and Barbados made headlines, particularly in the latter country, where mega-star Rihanna’s uncle was found guilty of selling counterfeit PUMA Fenty by Rihanna slippers!

So what should a business person do, especially if cash flow is not as robust as desired.  Let us focus on trademarks and industrial designs.  It is suggested that as soon as possible following the establishment of a business, an application should be made to  register the trade or service mark(s) (design and words) in the country of origin.  This also applies to any industrial designs which are unique to your product and which you wish to safeguard. This will ensure immediate protection in the first country in which business is done.  Secondly, carefully consider the countries to which you wish to export your goods and/or services and seek legal assistance within those countries to assist with the process.  Do your homework.  Take some time researching these external countries and seek assistance if necessary in determining whether your logo or name are culturally aware and if translated, do not offend.  Also, do not hold slavishly to a particular name or logo, have a few variations ready as a registry search may reveal that the trademark or design which is dear to your heart is already in use by a well established brand.

Another consideration is that of the requirement in some jurisdictions to prove that the trademark or industrial design will be used within a specific time period.  The idea is that “empty” applications which block the flow of legitimate commerce should not be allowed to “clog” the system.  This is therefore another consideration for entities seeking protection in as many countries as possible as in the future a company may have to face the reality that another entity was able to register a similar trademark or industrial design by the time the first company’s product is finally ready to be marketed in the desired country.

The bottom line is, with the plethora of potential risks floating around the international trading space, the protection of IPRs should be paramount to the management of risk in an ever-changing and ever-hostile business world.

 

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