The market developments in the recent years, marked by the COVID-19 pandemic and the underlying crisis, changed the behaviour of companies and entrepreneurs. They had to adjust their business models and find solutions and opportunities to continue and expand their operations, in the context of the social distancing rules.
Even the most conservative entrepreneurs and the owners of emerging businesses had a pragmatic approach of the business environment, as the unprecedented pandemic restrictions affected the relationship between companies and consumers.
Many business owners solved the social distancing issue by developing, upgrading and often designing an online platform from scratch, for promoting and marketing the company’s products and services to the consumers. Since a significant part of the economic activities was transferred online, companies had to choose the most appropriate image for their online activity and the adequate means for promoting a visual identity able to catch the consumers’ eyes.
Marketing decisions should be correlated with the protection of intellectual property rights
Certain marketing decisions proved wrong or extremely risky, in the lack of an adequate strategy concerning the protection of intellectual property rights or of a budget dedicated to IP issues.
Some companies allocated resources to develop their online reputation and visual identity by registering trademarks and reserving domain names, being confident that this will confer absolute protection against their competitors. Yet, without the proper IP advice, the holder of a trademark or of a domain name might soon realise that these are not enough or that they are inadequate and unable to protect their business.
The assessments on intellectual property portfolios or focused on certain IP rights only revealed how vulnerable such corporate intellectual property assets are and to what major risks companies could be exposed if they would try to enforce them against third parties, considering the object of the protection and to the scope of the registration. Thus, we found that many companies face certain difficulties when choosing the best intellectual property strategy.
Key questions and answers to design a sustainable intellectual property strategy
In our recent practice, we identified several issues faced by companies and entrepreneurs, for which it is sometimes difficult to find straightforward solutions in lack of a proper IP analysis. The answers to questions such as the ones listed below are essential to develop their business and to successfully implement the campaigns and projects launched on the local market or worldwide:
• which registration should be dealt with priority: the trade mark or the domain name;
• what should be registered: a verbal or a figurative trade mark;
• it is enough to register a combined trade mark, if it includes a verbal component;
• the investment should be made for an design or model, or for a 3D trade mark;
• can you register a colour as a trade mark;
• how can you protect the graphic interface of a website/web page;
• do contracts on software provide unlimited rights ;
• is an intellectual property right more valuable than other?
Such questions require specific answers tailored to the needs of each company, depending on its business strategy, the industry or business field, the interactions with the consumers and the envisaged promotional activities.
Financial support from the authorities to optimise the intellectual property portfolio
The national and the EU authorities are encouraging the entrepreneurs willing to expand their intellectual property strategies, by providing certain limited financial support.
The initiatives implemented by the authorities, such as granting intellectual property vouchers and the reimbursement of a percentage of the companies’ costs for securing intellectual property rights, are more than welcome, even if they concern only part of the intellectual property portfolio. This support will be granted also in 2022 for helping the business environment to optimize their intellectual property rights.
The value of the intellectual property
We consider that it is important for companies to acknowledge the importance of the intellectual property rights irrespective of the business sector, and to build the marketing strategy based on an adequate intellectual property assessment, since the early stages of each project.
The failure to ensure the adequate protection of intellectual property rights may trigger significant legal risks. The financial support granted by the authorities is insufficient without the proper advice, since companies could use such support for acquiring at a lower cost intellectual property devoid of any valuable content or even IP rights which can trigger further risks, exposing the business to certain risks higher than the costs for obtaining the protection.
The consequences, risks, and sanctions which might occur for companies failing to design their business decisions while taking into account the intellectual property matters are a topic to debate in a subsequent article.
Dan Minoiu, Partner MUȘAT & ASOCIAȚII
Julieta Sfeclă, Managing Associate MUȘAT & ASOCIAȚII