Carnival is Bacchanal: A Controversy over Intellectual Property Rights

Last month, moves by well-known actor Michael B. Jordan to trademark the name ‘J’ouvert’ in the United States sparked online condemnation within the local community and cultural experts over the inappropriateness of a foreign person or entity seeking trade mark protection for a word synonymous with Carnival culture.

Well placed comments on the issue from different stakeholders seemed to have had the desired effect, in that the US trade mark application has since been withdrawn along with a public apology by the brand owner and a promise to rebrand the product. Many questions have been raised about, for example, intellectual property infringement, misuse of cultural heritage, protection of traditional cultural expressions and ownership of rights.

This latest dispute serves as another reminder of the importance of rethinking intellectual property in terms of the steps that can be taken to, not only secure and protect these valuable rights, but also to capitalize on their commercial value.

Increasingly, Intellectual Property has become an area of general interest, with the introduction of digital rights, the fast pace of mobile app development, generic pharmaceuticals, patent technology and communication which today impact our everyday lives.

Intellectual property rights are intangible rights which protect a range of assets from technical to artistic works and can be quite valuable. They are relevant to commercial activity and offer competitive advantages to both business and individuals alike who are able to exploit and benefit from ownership in intellectual property rights. Protecting one’s intellectual property should be a priority, as ownership gives an exclusive right not only to stop unauthorized use by a third party, but it also leaves the owner free to use it without any competition and for profit.

There are quite a number of intellectual property rights that exist and are legally protected in this jurisdiction – for example patents, copyright, trademarks, industrial design, geographical indications and trade secrets.

Registration of intellectual property rights is the first step to protection. There are also certain rights which can be protected without registration, for example copyright or unregistered trade marks. There are obvious benefits to ownership, for example where it acts as a deterrent to potential infringing activity. It also easier to transfer or license rights which make them more commercially valuable.

In Trinidad & Tobago intellectual property owners face serious challenges in the fight against infringement locally, regionally, and internationally, as well as online.
Unauthorized use of these rights can dilute or damage brands, reduce the price consumers are willing to pay, have a negative effect on a brand owner’s profits and be linked to illegal activities such as counterfeiting, piracy, money laundering and illicit trade.
Digitalization has made it more difficult for copyright owners to take steps against the unauthorized use of copyrighted digital material, such as music, video, and images on the Internet. Even with the advent of online systems like the World Intellectual Property Office’s ‘WIPO Proof’ which creates a digital fingerprint or digital file of any creation, owners still have to take other supporting steps to protect their assets.

Ownership requires continual monitoring against illegal use, such as pursuing enforcement including anti-counterfeiting strategies, criminal actions, civil proceedings as well as border enforcement measures against infringers both in brick and mortar outlets and online.

Along with taking steps to secure legal ownership of an intellectual property right and protecting it from unauthorised use, an owner should look at commercialisation and how to make the most from these assets.

For the savvy entrepreneur, ownership may present a number of opportunities to exploit the value in intellectual property for profit. These might include assignment, licensing, or use of an intellectual property asset for collateral, securitization or to attract investment. In the current economic climate, as business looks for innovative ways to not only stay relevant but thrive, intellectual property has an important role to play.

For companies focussed on export, protection of intellectual property assets beyond the borders of Trinidad & Tobago is already in train, through (among other things) this country’s recent adoption of the international Madrid Protocol which allows for filing for protection of a trade mark through a single application process which facilities registration in multiple participating countries. For the local manufacturer seeking to expand into regional and international markets or the mobile app developer with co-existing intellectual property rights, exploring options like this are worthwhile.

Essentially, intellectual property rights need to be protected, maintained and defended in order to retain value. Ownership makes it easier for an owner to guard against use of its rights without consent.

In the end, protection of intellectual property in this ever dynamically evolving world requires a pro-active approach, and at least in the local context, developing a culture which not only appreciates the process behind creation of intellectual property but is also increasingly pro-active in taking the steps towards protection and profit generation, is overdue.

Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.

fanta punch 270x300This Article was authored by Fanta Punch, Partner at M. Hamel-Smith & Co. Fanta can be reached at fanta@trinidadlaw.com.

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