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?

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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.

The Invisible IP Filter for Second Hand Products

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It is no secret that the best place to buy designer gear for practically the price of a takeaway meal is in Africa. Believe me, it is a joy to receive a genuine designer product for peanuts because the seller is ridiculously clueless about the real value of the product he is selling. Sweet days!

Why? How? Say you.

There are trunk loads arriving in our parts on the daily, that’s why. ‘Charity goods’ they are, but we pay for them because none of our sellers will actually let us have them for free.

Charitable as the globe is, this presents a unique conundrum. Not enough of the addictive product is available. Result = fake copies which cost more than the cheapie you bought down the market. People, erm… ladies, love new things, and even better when it looks like their favourite designer product which are few and far between up in here. Thus, it only makes sense that you have to pay more for your passed off copy which someone burnt midnight oil, greed and selfishness to replicate like a bulk Picasso.

Does intellectual property apply to products given up by the original owner as a charitable gesture? Certainly, a lot of shops sell these charitable products although they have no affiliation with the original brand.

But that’s not even the contention.

The contention is the lack of prescence of the big brands here who can enforce against infringement of their Intellectual Property in developing countries. Infringement is a free for all party if you can bring your own infringement plan and piracy projections. Walk around the streets of Nairobi and registered businesses with valid business permits are selling fake bags, shoes and accessories. Licenced infringement!

If there is no one to prosecute against those who pass off, then it becomes a trend that many immerse and fully devote themselves to. It is quick cash, ladies are slowly catching on to high fashion thanks to social media and news. This envy is then fed by the fake imports market.

Brand presence would clearly be a hindrance to this market. Nonetheless, do not expect to make money from a society that is used to the alternative. This IP Quail has seen far too many old ladies with authentic monogram designer bags to care very little about shelling top dollar for one abroad.

Despite this, it is time we formed an Intellectual Property police and penalized businesses trading in fake products to fight this passing off menace.

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Can Anyone Use Your Image on their product? Rihanna v Topshop

Rihanna Topshop vest

Here lies an interesting case which will better aid your view of I.P issues.

This case involved an artist you can relate to; world famous pop star Rihanna aka “Riri”.

In this case cited as Robyn Rihanna Fenty & Others v Acardia [2013] EWHC 2310 (Ch), a well-known retailer: Topshop sold vests with the photographic image of Rihanna on the front. Rihanna argued that she had not given permission for such use thus the unauthorized use infringed her rights. Topshop on the other hand argued that they had got the license from the photographer to use the picture. What smack! Even worse and more ghastly, Rihanna argued that the image used on that particular vest was unflattering and we can imagine vile and utterly rank!

This is a classic trademark case of passing off where someone uses your, image logo or brand in their product and misleads others in the process to believe that the product is actually yours. This practice is highly rife in Africa as you can imagine. Only here, people  get away with it.

For a successful passing off case there had to be three elements: public goodwill and reputation to protect; complained action was a misrepresentation i.e. misleading others into buying the non-endorsed product; and that representation might damage her goodwill which arisefrom her status as a style symbolL having authorized products for fashion houses such as Gucci and Armani.

One of the witnesses working in Rihanna’s management team on Jay-Z’s Roc Nation testified that the product was likely to deceive the purchasers especially because of Rihanna’s previous relationship with the Topshop. Of greater importance is that Rihanna had visited the Topshop store, and they later tweeted that she had graced their London store, leading many to believe there was a link with the retailer and that she was considering connection with the brand.

Interestingly, the law in England thence was that one could not assume that a fashion image in public use was authorized for use by the relevant parties and that a connection to such a belief was irrelevant. Rihanna perceived as style icon by many females and fans would lead them to believe that any product with her image would be endorsed by her. The misrepresentation led to a ‘loss of control over her reputation in the fashion sphere’.

The judge found that even without the word Rihanna splayed across the vest apparels, a misrepresentation had still been made. Sales were lost to her merchandising business a result of this damaged goodwill.

The judge in this case found that Topshop had sold the products with unauthorized images of Rihanna and awarded some cold hard cash to Riri.

What does this mean to you?

It means that one day ‘if’ you become famous, the fact that your local kiosk uses your image on its bread and sweets, does not mean you should break the bank to sue it.  You will have missed the 3 critical elements of passing off discussed above. You would have to be supremely famous, have lots of money, have goodwill ‘capable’ of being damaged and which in fact deceived the public, for your claim to be remotely successful. That is a tall order.

If anything, I say any publicity is good publicity. How many people globally have Googled  Topshop?