YOUR SOLE IS MINE!

          IP Quail ChronicleIMG_1941

A pressure inducing page turner.”

         IP Quail Times

  “We couldn’t decide who to swing for.”

        IP Quail Observer

 “A warp of philosophical plots.”

The Characters:

  1. Christian Louboutin- [Lu buh tah]: A French fashion design house, a giant in a sea of vultures oozing opulence and the bane of many a wallets.
  2. Yves Saint Laurent [Loh roh]: ‘Un autre’ French fashion house, with grandiose yet wearable threadery.

The Setting:

A musty wooden enclosure fortified by four partitions enjoined centrally by a high ceiling with petrified floors, marble exteriors (variable) and mortals in flowing black robes, white powdered wigs and a gavel; a Court.

The Plot:

A partially wounded bleeding sole vs A fully wounded bleeding shoe, which one was wounded first and can the partially wounded sole have an exclusive right to be wounded to the exclusion of all other fully wounded shoes which would likely confuse regular shoes that the partially wounded heel was the original and first officially bleeding heel? The plot thickens (or clots).

Can a single colour be claimed as a mark of trade in fashion and if so, could a red lacquered sole which contrasted in colour to the rest of the shoe be considered as a distinctive identification for a brand?

The Conflict:

Your sole is my sole, and my sole is all mine. No so? Could Christian Louboutin have the exclusive use of the colour red on the soles of its designer footwear to the exclusion of other brands?

The Resolution:

No, no, no (hand smack!) You can’t do that. You can’t eat all the cookies in front of a drooling pack of vultures. Leave some crumbs! You cannot claim exclusive use of a colour in fashion but wait, just you wait one second, you may be able to claim how you use it; in this case on a sole contrasting with the upper shoe, but only in the designer shoe market.

Consider a scenario. Lady makes straw hats, lines them with purple linen to absorb sweat (and associates purple with royalty). Upper crust ladybirds flock for her hats and she hikes the price. Her twin Ladio when painting the shed knocks over the can of paint emptying half in the middle of his cowboy hat. It dries off and leaves a purple stain. People notice his purple coloured cowboy hat interior and request him to make some for them. No doubt Lady is furious upon finding out that her colour concept has been swiped albeit to a different market. Ridiculous to prevent people using a colour?

Can a single colour serve as a trademark on a product so widely used as a contraption used to protect feet?

In 1992, the red sole was developed by Christian Louboutin for women’s high fashion footwear and over the years became such a hit and was so closely associated to the brand that in 2008, protection for it was granted for that polished red heel in the form of a trademark. Enter YSL who created a collection in 2011 with similar bright red soles but which matched the entire colour of the shoe (monochrome).

Dissection: Can the look of something through colours which are in the public domain for free use (aesthetics) be protected, and secondly can certain elements of something with the special purpose of practicality (functional) as shoes be the subject of legal protection exclusive to one party?

Aesthetics: On the basis that the look and feel of something can distinguish one products from that offered by others and thus can be easily recognized by customers, the contention was whether the red polished colour on the sole of Louboutin’s shoe was distinctive and thus warranted of protection in the high end designer footwear market.

We can appreciate that in fashion, some companies depend on colour for recognition. Think of the Tiffany Blue box (trademarked by the way) which is described as an international mark of style and sophistication. Or the Burberry check pattern where emphasis is not so much on the colour but on the ‘arrangement’ of those colours and how they can create a cult recognition of a brand.

Functionality: For something with the practical use of protecting feet, Louboutin claimed they went further by making their shoe appealing and a signature of their craftsmanship. The red sole is one of the most recognizable brands in high fashion for footwear and is oft associated with a certain level of class and taste.

In the end the court held that it was worth protecting the colour  red sole of the Christian Louboutin shoe BUT only if it contrasted with the colour of the rest of the shoe. This means that other brands (read: designer footwear) are free to use the red colour on their shoes but only if the rest of the shoe is red as well i.e. one colour, (monochrome).

Take away: Fashion is heavily dependent on colour. Which means that a whole season of red stands the risk of being liable for infringement if various parties had the legal right to use the colours in a specific way and others infringed on that right. Contrasting red sole (not fine, don’t do it) One colour red shoe and sole; monochrome (fine, knock yourselves out).

Quail out!

 

Women in IP

Madame_CJ_Walker

In 1867, Madam C.J Walker became the first Female self-made millionaire in the United States. She did so by turning her own problem of hair loss into a business opportunity where she tested, developed and sold Madam Walker’s Wonderful Hair Grower. In just under 8 years following the opening of her business, she was a millionaire. Innovative even for her times.

Is the modern girl innovative?

“A woman is like a tea bag. You can never know the strength of that teabag until you put it in boiling water and you can see whether you are dealing with strong tea.” Mwangwashi Phiyega (First woman South African police Chief). No doubt, more women are being empowered and steered towards innovation. See, IP is an already niche area so the lipstick numbers are fewer here than in most professions.

In 2013, MIP published the Top 250 Women in IP within the United States. Some places do not even have a Top 2, so this list does things. In publishing, it did something which should become a regular occurrence for other locations globally, a recognition of women thriving within intellectual property. Not only will highlighting the women who pioneer in the protection of IP rights inspire others to follow suit, it also expands the innovative platform by allowing women to give a lot more in terms of creativity. It is true that, most educational institutions churn out graduates who upon graduation are on the auto-job seeking and not job creation settings. Naturally, the female is a problem solver and a solution giver, thus the innovation option should come easily with adequate mentoring.

There still remains the challenge in getting the female youth interested in intellectual property. Ideas are rife and in this digital age it is easier to expand knowledge and share experiences within the field, something which empowerment organisations on the internet have began to catch up on.

Here is paying homage to a few women inventors courtesy of women-inventors.com. Mary Anderson (windshield wipers 1903); Marion Donovan (Disposable Diapers 1940’s); Dr. Grace Murray Hopper (COBOL computer language 1959-61); Hedy Lamarr (Wireless communications 1941); Rachel Zimmerman (Blissymbol Printer whilst 12yrs old in 1980’s)…

To all female IP lawyers, practitioners, innovators and teachers, let your efforts shine.

OF THEFT AND IP

Lately, I have been mispacing, actually loosing things at an institution which insists I have to leave my bag in a holding area and take what I need separately. Within a day or hours of remembering the forgotten artefacts, I would retrace them only to find that someone had already given them a compulsory home. This despite there being a lost and found office and posters of my lost goods all over the place. This even after offering rewards upon return. The thieves just never seem to have a change of heart.

The reality is that most people generally like something for nothing (and this has nothing to do with Creative Commons)! Just as much with tangible property as it is with intangible property. The same kind of pain one would feel when they loose their property is the same kind of pain a creative would feel when their intellectual property rights are infringed.

In this region, this is evident of how we think on new music and we automatically think of download links.

We think of Movies and we automatically think of the cheap pirated 50bob ($0.58) dvds peddled in Town.

We want to own what comes our way either freely or at the least cost.

Herein lies the problem of trying to protect intellectual property not only in Africa but globally. A generation that is raised downloading and remixing freely does not understand the concept of walking into a shop and buying a $12 album or movie.

In England a couple of years back I remember a shop that allowed walk in mp3 down loads of individual tracks for £1-2 . This would be one way of mitigating loss to the creatives if encouraged by  certain incentives to that end user.

We need out of the box solutions and can do this by fully engaging the youth on ways of protecting intellectual property coupled with education that such theft is infringement of others sweat of the brow.

Patent Pending?

l007547_b-01

Recently, my door refused to accept the key betrothed to her as her lifelong soul-mate. I could have easily unhinged and thrown out the offending she bit, but I chose to do the inevitable for some; fix it. Well that and the fact that when things get busted around here, most of the guys lingering about do just that, linger…

See I wanted to understand why this she bit had taken this unusual course of key rejection, in the process subjecting one to the serious crime of preventing access to thy slumber chamber!

So bit by bit I unhinged this she bit (that pink part of the diagram) and upon unscrewing the lock, was pleasantly surprised by the sheer genius within.

To most folks, the simple door handle and its various connectors deserves no thought. After all most of us Arts ladies dropped kicked physics/sciences at the first opportunity. But I beg to differ. It took about an hour to figure out where the misplaced cogs on the bottom section would go, and even then, I still couldn’t for the life of Einstein get the bugger to work.

Ladies (and dudes who act like ladies when things get busted), do take an interest in how things work especially when they stop working. Do not be afraid to open them with caution to understand how someone configured the contraption to make your life easier.

That someone sat down and figured out how to keep nosy people out of any chamber with the use of a key and lock embedded on a piece of wood using a design that has stood the test of time. This is more amusing only when an internal inspection is explored to reveal those internal workings of a lock.

My greatest test in knowing whether I can add any value to intellectual property is by asking: If I was to be warped back momentarily to 10 B.C, what things around me presently could I recreate in those tough Neanderthal times?

Better yet, if you were to be warped 200 years into the future, what things around presently can be modified or created to make life easier?

Get inventing and lets see some of those patents pending.

Microsoft 4Afrika IP Hub

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Last week I attended the launch of the Microsoft 4Afrika Intellectual Property Hub launch event on a cool Nairobi evening.

The event pooled in software developers and IP enthusiasts like this quail who were keen to see what this new kid on the block had to offer.

Indeed most creatives are not fully aware of how to protect their creations and we have certainly heard of big corporations exploiting these unprotected creations commercially.

The Microsoft 4Afrika IP Hub promised to be a place of refuge for all things intellectual property and is further strengthened by working in conjunction with a law firm to advice and protect developers IP rights.

This is promising. It for one may motivate more innovators due to the reduction in exploitation of their creations.

Innovation is still very low but with organisations like these investing in intellectual property, more knowledge on the issues and protection will mean increased enthusiasm for creatives.

It is even more exciting because the intellectual property space is slowly expanding as is evident from the faith of this IT giant investing in the country.

Second hand Society: Innovative plug?

Secondhand society

There streets in most developing countries are flooded with second hand cars. They come in all makes and sizes at a price more expensive than the last owner would care to pay for. They have contributed to the already certified traffic menace on the road and increase by the day.

Why is there very little innovation in Kenya and probably East Africa with regards to the motor manufacturing and assembly industry? For Intellectual Property to flourish, there needs to be a motivation for innovation.

There is a car bazaar on any vacant space along a key road and many more second hand imports available online. It is no wonder that the seeds of innovators withered a long time ago with the Nyayo Pioneer car. The Nyayo Pioneer were the first ever Kenyan made cars in 1986 by University of Nairobi students at the behest of the then president. They were sourced from local raw materials and were pretty okay by the then standards. It failed for lack of funds.

A society that depends too heavily on imports hinders innovation. Will there ever be another opportunity to nourish our fledged car industry? By the look of the imported steel outside my window, the answer: a blatant nay!Nyayo pioneer

Patent Please…

Julian Hakes:Mojito Shoes

Julian Hakes:Mojito Shoes

In my first year at Law school I came up with a brilliant (or so I thought) idea for a ladies shoe. It was truly way before its time! I received a letter through my door on a random winter day about a company in Europe which did research and development on innovative products. With the naivety of youth, I happily posted them my drawings and a brief description of how the invention worked.

It took six months before I got a response stating that they had assessed the product of my virtuoso and all they needed was $500 to do a thorough market research. With my malnourished pockets, this was someone’s idea of a sick joke. Poof! Went my dreams.

Fast forward 8 years later and there on my T.V screen is a story on CNN about the same shoe (the spawn of my creative genius) being peddled around New York!

Those were rookie days when Intellectual Property sounded like a corporation selling smart houses. In this day and age, we are a lot more aware about how to protect the expression of our ideas and inventions. But, there are many naïve mini ME’s still being bewitched by such trickery.

Protect your creation at all costs. If it is an invention by all means find out how to patent it. If you can’t afford this, then by all means ‘Do Not’ put it out there until you can.