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?

What is Intellectual Property?

Intellect: human mind

Intellectual Property is an area of law which protects the intangible property resultant from the creativity of the human mind.

Why should this be of interest you ask? Well, it will guide you not to break the shambles out of someone else’s creative expression and prevent others from the equivalence of robbery with violence on your art.

The protected areas include:

Copyright:

An exclusive right given to an author of an original work. Copyright protects the expression of an idea and not the idea itself. Hence, you and your friend have an idea for an invisible ring which glows in the dark! You will both likely express this differently i.e. colour, material, drawings e.t.c. Thus the way you express it is what copyright protects and limits anyone else from copying your work. The public will also need your express permission before copying, sharing/distributing publicly, performing/ displaying publicly or using your work online.

It covers literary work (your romance novel), dramatic work (the script you used in your high school play), artistic work (the pot you messed up in pottery class), musical work (the form sheet that looks like Greek algorithm), sound recording( the illegal copy you downloaded online), Cinematographic films & TV broadcasts (the blockbuster movie you shouldn’t have bought for 50 bob ). Copyright is automatic on completion of the work by the author so don’t try and protect your half-baked sculpture! Most importantly you can only protect independently created works which have attained the minimal degree of creativity threshold. If these two conditions are not met, forget about copyright until the near future. Copyright lasts 50 years from the creation of the work or 50 yrs from the death of the author for literal, musical and artistic works.

Trademarks:

A trademark is a word, logo, symbol which identifies the origin of a product and distinguishes it from your competitors.  A service mark does the same but from a service industry perspective. So if your logo/brand is ‘Mamanani’ and ‘MamaNyani’ down the road trades in the same class of business, that be an infringement! You need to register your trademark before you can battle it with MamaNyani… You can register and renew every 10 years. However if your trademark is offensive, illegal or deceptive, it ain’t happening!

 

Patents:

These protect the functional elements of works i.e. the features and processes that make an invention work. The invention must new, have an inventive step and should be industrially applicable. Sure there will be prior art that may be similar to yours, but if you can show that you improved the prior art then you are on your way. It is a real bugger to get Patent protection, it can take up to 2 years from the time you file it and can be quite costly. But the sweet juice of sweet success means that you can lock anyone in the region you registered it from making anything like it. Yes, you do have to register it in the countries you want to claim exclusivity. Your patent is you bragging right to your genius mind and protection lasts for up to 20 years.

Registered Designs:

Protection of the right to the visual appearance of a product in the country of registry. i.e colours, shapes, textures, contours, lines etc. In short the look and feel of the creation. The design must be new and have an individual character. So if you develop a board game, the way it is packaged, the dice pieces, the reading material etc will be subject to the design right. They can be protected for up to 25 years.

Other Protection:

Trade secrets: for keeping certain elements of an invention secret as long as it is not in the public domain.

Plant Breeders Rights: for the protection of new varieties of plant or seed.

Database Right:  for the protection of the investment into the arrangement of a database.

Publication Right: to publish the work for the first time where the copyright has expired.