About the author:
Omolade Zainab Adeyemi is a qualified legal practitioner in Nigeria, with a specialization in IP & competition law.
Let’s imagine the following scenario… you park your car along the road and run to the post office to send some letters. When you get there you meet a long queue and have to wait for your turn. Before you get back to where you parked your car, it has been towed and you are left with instructions to contact the authorities. What do you do?
I want to believe that you would quickly get in touch with the towing company via telephone or personally.
The process of recovering your car doesn’t end there. You would have to show that you are the owner of the car in issue.
How would you prove ownership over the car?
I assume you would provide your ID card details to prove your personal identity. Additionally and to eliminate doubts of your ownership over the car, you would provide the vehicle title that was given to you by the dealership showing your name and sometimes even your picture along with information that clearly identifies the car; a bill of sale and/or the deed of transfer. With these documents, you prove unequivocally to the towing authority that the car is yours.
Asserting proprietary rights in our everyday lives...
The need for asserting our proprietary rights is a common experience, not limited to our car.
We constantly need to prove that we are the original or beneficial owners of things we surround ourselves with, such as the house we live in, our personal computers, our phones, clothes, and so on.
But in showing to others that we are who we say we are and the owner of things we claim to belong to us, we constantly rely on different pieces of evidence. These vary from but are not limited to, national identity card, voter’s card, international passport, driver’s license, work permit, pin codes, facial recognition, passwords, signatures, DNA tests, and fingerprints. The issue nevertheless arises from linking these proofs of our identity with real properties, and for those, you would need the corroborative property deeds.
The question therefore is - if proving ownership of tangible things (even though they manifested from our creativity) is so complicated, how can we prove ownership of our intangibles? Interestingly, asserting ownership over intellectual property rights (IPRS), and unregistered rights, in particular, is achievable with proper vigilance and reasonable care.
What are the common examples of unregistered IPRs?
You are probably familiar with some of them. These are copyrights and related/neighbouring rights, trade secrets, common law/community design rights, trade dress, common law trademarks, defensive publications, and databases. But what you may not know is that these rights are unique, because most of their protection usually starts from the beginning and/or when they can be perceived directly or indirectly.
Under which conditions can you maintain these unregistered rights?
The special know-how of your work should be kept confidential to remain valuable and for this, you must take reasonable measures, usually with technological aid.
The 2D/3D sketch/drawing and prototypes of your work should be original and their authorship linked to you to maintain ownership. This should be done by having a trail of evidence.
The name, mark or logo adopted for branding your products must be particular and this should create a connection that traces to you and your brand. This can be achieved with evidence obtained during exhibitions, displays, sales, etc.
Publication of the inventive aspect of your innovation should be done in a way that allows the public to access it, in order to guarantee your priority and freedom to operate (FTO).
For your actions to yield fruit however, you would need a continuous scheme of evidence trail of the whole creative/inventive process. This would also cover the day-to-day business interactions of your product/innovation with the public to effectively assert your right.
What would assist you?
Having a timestamp proof of time and date from recognized timestamping agencies (TSAs) would go a long way in assisting your actions. The adoption of a technology based on cryptography would also maintain your trade secrets. Additionally, having constant access to an unlimited storage system would ensure that your evidence is not scattered in different places and safe from mismanagement of storage devices.
To implement all these measures, having an account on Bernstein.io would be a boon! The certificate generated from a public blockchain creates an undeniable trust, gives you peace of mind and guarantees the ownership to your unregistered IPRs. Depending on the jurisdiction, it can also be an important piece of evidence for offensive or defensive purposes in infringement suits.