“This is wickedness, pure wickedness”. “This is my intellectual property…your choristers stole my design…Something that I am selling…” These impassioned words echoed across social media a few weeks ago, igniting a storm in the realm of Ghanaian creativity. Serwaa, a young and popular broadcaster, had recently ventured into the world of fashion by crafting designs that resonated with her growing audience. However, what began as an exciting foray into a new venture took an unexpected turn when the choristers of a local church posted a dress on Facebook strikingly similar to Serwaa’s acclaimed creation – the Celine dress.
The ensuing drama, marked by frustration and allegations of intellectual property theft, unfolded on social media platforms. As the controversy gained momentum, the situation revealed its complexity. Voices in the fashion community suggested that Serwaa might have drawn inspiration from Pinterest for her designs. The controversy’s climax saw Serwaa’s business office deleting the post and retracting the claim of intellectual property theft, leaving many bewildered and the narrative unresolved.
This incident brings to the forefront a more significant issue prevailing in Ghana – a lack of understanding about intellectual property rights. The media personality’s experience prompts questions about the broader awareness of intellectual property in the country, especially among those not well-versed in its intricacies. In the wake of such events, a need to demystify the concept of intellectual property rights for Ghanaians becomes apparent.
With over a decade of experience at the Ghana Industrial Property Office, I’ve witnessed a substantial gap in awareness and education regarding intellectual property. Surprisingly, a vast majority of intellectual property data in Ghana pertains to foreigners. It is my intention to bridge this knowledge gap by providing a comprehensive guide to intellectual property rights within the Ghanaian context.
Over a series of articles, we will embark on a journey into the various facets of intellectual property; unravelling its significance, types and the rights associated with it. The exploration will include in-depth discussions on copyrights and creativity; trademarks and brand protection; patents and innovation; trade secrets and confidential information; IP rights in the digital age; enforcement and legal remedies; international IP considerations; navigating IP rights in Ghana; and practical tips for individuals and businesses.
Join me in this exploration as we navigate the intriguing world of intellectual property, aiming to empower Ghanaians with knowledge and understanding in order to protect and harness the full potential of their creative endeavours.
What is Intellectual Property?
Intellectual Property, often abbreviated to IP, is not just a legal concept but a dynamic and complex domain carefully woven into the fabric of creativity. At its essence, IP is a right deeply connected to creations of the mind, manifesting in various forms – from groundbreaking inventions and artistic masterpieces to literary works that captivate the imagination. Moreover, symbols, names and images used in commerce are crafted through ingenious workings of the mind, rendering them intellectual in origin.
The heart of intellectual property rights lies in providing creators and innovators with exclusive control and economic benefits over their creations for a defined period.
Types of Intellectual Property
In simple terms, the main categories of intellectual property include the following:
- Patents: Representing groundbreaking inventions – often in the technological space, patents provide exclusive rights to inventors for a specific period… typically 20 years. In return for disclosing intricate details of their innovations, inventors gain the authority to prohibit others from manufacturing, using or selling products or processes covered by their patents.
- Trademarks: These are identifiers bestowed upon a product or service, typically in the form of a name or logo. Trademarks protect distinctive signs, symbols, names and logos used in commerce to identify and distinguish products or services. Trademark owners can prevent others from using similar marks that may cause confusion among consumers.
- Copyrights: Made up of the literary and artistic creations of owners including songs, movies and plays etc., copyrights protect original literary and artistic works such as books, music, paintings and software. The copyright holder has an exclusive right to reproduce, distribute and adapt their work for a specific period, which generally lasts for the author’s lifetime plus 70 years
- Geographical Indications: These are IPs not belonging to an individual but linked to a particular geographical area or belonging to a community of people. To qualify under this IP, the product must possess a reputation or characteristics linked to that location. In Ghana, the elaborate designs and vibrant colours of Kente cloth from Agortime-Kpetoe vividly illustrate the cultural and geographical importance woven into geographical indications.
- Industrial Designs: Industrial designs protect the unique visual aspects of products, such as their shape, surface ornamentation or a combination of both. They are used to safeguard the aesthetic elements of functional objects. Notable examples include the design of Voltic bottles, the shapes of Belaqua bottles, and the artistic patterns in African prints.
- Plant Varieties: Primarily applied in the field of agriculture, this form of protection ensures exclusive rights for distinct plant varieties. This type of intellectual property shields the innovations of plant breeders, granting them plant breeder’s rights.
Notable instances include specific plant breeds, securing exclusive rights for plant breeders to reproduce and sell their newly developed varieties within a defined period.
- Trade Secrets: Trade secrets are valuable, confidential information; such as manufacturing processes, formulas and customer lists which provide a competitive advantage to businesses. Trade secret protection relies on maintaining secrecy, and it can be perpetual if the secret is kept confidential. Recognisable applications of trade secrets are prevalent in the beverage and food industry. Iconic brands like Coca Cola and KFC guard their recipes as trade secrets, avoiding disclosure to prevent replication by competitors in the same industry.
- Trade Dress: This refers to the visual identity and design elements of a product or its packaging that are distinct and inherently linked to a particular brand. Protected under trademark law, trade dress serves as a visual signature – encapsulating the essence of a specific brand. Concrete examples of trade dresses can be observed in various industries, where the visual appearance of products or packaging plays a pivotal role in brand recognition and consumer loyalty. We will delve deeper into these examples in subsequent articles.
What rights are linked to Intellectual Property?
Intellectual property rights are essential for fostering innovation, creativity and economic development by providing creators and inventors with incentives to invest time and resources in their work. Immediately an IP is created and registered, the owner of such IP has an exclusive right to the use of such an IP. This means that you cannot use an IP without the inventor’s knowledge and permission.
These permissions are given through licencing, commercial agreements etc., to ensure that the owner of an IP reaps economic benefits accruing from the use of their intellectual property. These rights also promote fair competition, ensure that inventors benefits economically from their inventions or creations and protect consumers from counterfeit or inferior products.
Business Names vs. Intellectual Property Registration
In my work with the Registrar-General Department’s (now Office of the Registrar of Companies) IP Office, a common confusion emerges wherein many people overlook the distinction between registering business names and safeguarding intellectual properties.
A significant number of entrepreneurs visit the office with their products, yet when enlightened about the necessity of intellectual property registration they dismiss the counsel, opting to only register their business names. In doing so, they unwittingly neglect protection of the unique elements intrinsic to their trade, such as names, logos and other identifiers.
A startling pattern unfolds when these individuals return, expressing grievances about unauthorised use of their logos, names or replication of their products. At this juncture, taking corrective action becomes a formidable challenge, as the window of opportunity for IP registration has already closed.
Setting the Record Straight here…
Registering a business name, in any form, is about legally establishing a business entity for conducting commercial activities. It provides the structure your business needs and legal recognition for its operations. However, here’s the catch – it does not operate to protect your products or services.
For instance, consider Dzata Cement – a registered trademark under the Intellectual Property Office and owned by Dzata Cement Limited, a company registered under the Companies Act of Ghana. The name and logo of Dzata Cement are shielded under the IP laws of Ghana. This IP registration safeguards the product name from imitation, infringement and unauthorised use. No one can register the same name in the cement category; and if someone dares to infringe on your IP, you’re entitled to take legal action to protect your rights. This principle applies to all other IPs you can think of.
Here’s a common pitfall for many businesses: if you solely register under the Companies, Partnership Act, or the Business Names Act and overlook registering your product under Intellectual Property, you’re undermining yourself and your business. Wondering why? Well, someone might seize your name – compelling you to change it, even if the original idea was yours.
This illustrates that IP registration goes beyond a mere formality; it serves as your shield. It bestows exclusive rights upon your creations or innovations, empowering you to thwart others from using, reproducing or profiting from your IP without your consent. Consider IP registration as a protective cloak for your ideas and creative works.
Here’s the hard truth: if you neglect IP registration, you’re exposing yourself to risks. The person whose ‘supposed’ IP you’re using might sue you for infringing on their IP, leading to hefty fines or damages. You might even be compelled to change your business and/or product names. That’s the price you pay for not registering your IP. So, take the right step – protect your intellectual property and safeguard the future of your business.
Importance of Intellectual Property Registration
Understanding the critical importance of intellectual property registration is paramount for creators, innovators and businesses. Here are compelling reasons why taking IP registration seriously is a strategic move:
- Exclusive Rights and Exclusivity: When you register your IP, you gain the exclusive right to use that name or logo for a specific product. Others are barred from using it without your permission. This exclusivity serves as a potent tool for safeguarding your innovations and creative works.
- Economic Benefits and Royalties: IP registration opens avenues for economic gains. You are entitled to royalties whenever someone uses your IP. An illustrative case is widespread use of the ‘Veronica-bucket’ during the COVID-19 pandemic. The inventor, without IP registration, missed out on potential earnings. As an aspiring inventor, artist or creator, IP registration ensures you don’t miss out on rightful compensation.
- Monetisation Opportunities: Registered IP can be monetised through licencing, franchising or outright sale. By allowing others to use your IP under specific terms and conditions, you generate revenue. Additionally, assigning ownership of your IP to another party can contribute to the public’s broader benefit.
- Increased Business Valuation: Registering IP enhances the overall value of your business. It serves as a testament to the worth of your intellectual property assets; providing assurance to investors, lenders and potential buyers.
- Market Advantage and Brand Protection: Registered IP provides a competitive edge in the marketplace. It acts as a shield for your brand, products and innovations, making it challenging for competitors to imitate or copy your work. This advantage secures your market position and bolsters consumer trust.
Why are Ghanaians apathetic toward IP?
Despite the manifold advantages of intellectual property, there seems to be a lack of enthusiasm for its adoption among Ghanaians – and Africans in general. Various factors contribute to this phenomenon.
- Lack of Awareness and Education: Many individuals in developing countries, including Ghana, lack a comprehensive understanding of the value and importance of intellectual property. This unawareness often results in indifference or neglect toward IP rights and their potential advantages. Over my years at the IP Office, it became apparent that a significant number of people had limited knowledge of IP.
To address this, the IP Office should take proactive steps to educate the public. Initiatives like short videos, cartoons and social media campaigns could effectively convey the significance of registering intellectual property. Such awareness-campaigns can highlight the potential missed opportunities for those who do not register their IPs. Educating artisans on IP protection can further encourage them to innovate and contribute to the country’s development.
- Economic Priorities: Pressing economic and social challenges, such as poverty, healthcare and education, take precedence for many individuals in developing countries. The struggle for survival often leaves little time to consider how intellectual property can contribute to economic advancement. Governments can play a crucial role in shifting priorities by creating platforms that promote and sell locally made goods. This not only aids economic development but also incentivises local artisans to register their creations, knowing there are ready markets available.
- Informal Economies: A significant portion of economic activity in many developing countries, including Ghana, operates within the informal sector. This informality poses challenges for enforcing intellectual property rights effectively. The Ghanaian economy’s informal nature means the IP office may lack necessary infrastructure to simplify certain IP registrations. Streamlining processes, especially for patents and utility models, can facilitate easier registration for artisans, businessmen and creators. For instance, adopting models like Japan’s Utility registration – which played a role in transforming their economy – can be explored.
- Limited Enforcement Capacity: Even if IP laws exist, enforcement capacity in developing countries may be limited. Insufficiency of resources, trained personnel and legal infrastructure can hinder IP laws’ effective enforcement. Addressing this limitation requires investment in resources and training. Streamlining enforcement processes can also help tackle infringements more efficiently.
In summary, Intellectual Property permeates every aspect of our lives – holding vast potential for those with creative ingenuity. The latest technological marvel, the fashion collection for a special occasion, the choice of food and even the water we drink – all bear the imprint of intellectual property. Contemplate the smartphone you desire, from the screen protector to the battery – all components represent someone’s intellectual property, entitling them to rightful claims. Deliberate over the perfect attire for an event, whether it’s shoes, dresses or accessories, and even the makeup you choose – each decision involves considerations of intellectual property.
Taking intellectual property seriously, both as individuals and as a nation, entails educating people about registering their IPs. It involves ensuring robust protection for people’s intellectual properties and the effective enforcement of IP rights laws. By doing so, we open the door to creating iconic brands akin to iPhones or Louis Vuitton – capable of transforming lives and economies.
To embark on this transformative journey, we must cultivate an interest in intellectual property. Let us equip ourselves with knowledge in IP, becoming IP elites who confidently assert their rights. In our next article, we will delve into the fascinating realm of copyrights. Stay tuned.
Evelyn is a corporate lawyer, IP Specialist and Deputy Chief Inspector at the Office of the Registrar of Companies, Ghana. Should you have any questions or thoughts on the topic of IP or related matters, please don’t hesitate to reach out via email at [email protected] or via telephone or WhatsApp at +233-242-845-749.