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BUSINESS <<BUSINESS MAIN
NRIS! Do you know?  
Patents & Copyrights: Not Just for Aryabhatta and Kalidas
Anuj Desai is an attorney at law, practicing
in the areas of intellectual property
and business litigation.

Most small business owners believe that these concepts are inapplicable to them and are better left to the Microsofts and Time Warners of the world. This could not be further from the truth.

Last month we looked at how trademarks are perhaps your businessís strongest marketing asset and how they can drive business success in the crowded marketplace. We now turn to the complex and often misunderstood areas of patents and copyrights. Most small business owners believe that these concepts are inapplicable to them and are better left to the Microsofts and Time Warners of the world. This could not be further from the truth.

A patent is granted by the federal government for new, useful, and nonobvious inventions. It allows the patent owner to exclude others from practicing its invention for a statutory period of time, generally twenty years. Most people feel that patents are available only to scientists or engineers who invent some tangible gizmo. Not true. While patents are generally related to physical inventions, they are also granted for business processes, software, and designs.

For example, suppose your company provides financial analyst services to various businesses. You spent months and months devising a formula that would help you analyze your clients cost structure and help them obtain better profitability. Under federal law, this formula, if unique and nonobvious, could potentially be patented. Obtaining a patent on your formula would effectively mean that you have a monopoly in using the formula for a certain number of years.

If the formula is a market success, this could mean unhindered growth for your business for a long period of time. On the other hand, without a patent, anyone could reap the benefits of your hard work by copying and using your formula for their own benefit. Hence, in this situation, a patent operates both as a competitive shield and sword. For a small business trying to make its mark, this translates into real dollars and sense.

Businesses engaged in manufacturing, engineering design, software
development, business process outsourcing, and similar efforts should take a hard look at their assets to determine whether patenting their inventions makes financial and strategic sense. Even where patent law does not provide a solution, other areas of law, such as trade secret law and unfair competition law, may help a company safeguard its assets.

Next, we turn to the concept of copyrights. Perhaps the most overlooked of the intellectual property triumvirate by small businesses is copyright law, which protects the original works of an author. A work is not limited to books and music, but also includes jewelry, fabric designs, computer programs, and more. South Asian small businesses particularly need to consider that copyright law does not only create rights it could also create liabilities.

Perhaps the most prevalent example of getting on the wrong side of copyright law would be the rampant selling and renting of pirated Bollywood movies by desi grocery stores. Most motion pictures, music compositions, and related multimedia are protected by copyright law, even if created outside of the
United States. Unless a business makes copies of such media with the express permission or license of the copyright owner, such duplication is copyright infringement, punishable by imprisonment and/or monetary penalties that could amount to thousands of dollars. A related example is where a business uses a pirated version of copyrighted software (such as Microsoft Windows). While the above practices are certainly common worldwide, and not exclusive to the South Asian community, they pose a serious risk of liability for a business because the copyright owner could choose to take legal action. With a downturn in the economy, and as revenue streams shrink, it is quite possible that big media companies will pursue copyright infringement claims to offset diminishing sales turning this risk into reality.

Copyright law, on the other hand, can also serve to create assets for a business. For example, a business may write a new piece of software code, a local jeweler may design a necklace that has popular appeal, or a writer at NRI Pulse may pen an illuminating essay on Indian American politics. All of these works are protected by copyright law. This means that the owners of these works can use their copyrights to take legal action against others who copy, distribute, display their works without permission. Further, if the copyrighted work has market demand, it could be licensed out to others, creating a new source of revenue. This beneficial use of copyright law is quite common in the software and journalism industry.

A final point related to intellectual property generally is the work for hire concept. Businesses must be careful to ensure that intellectual property created by their employees does not create ownership rights in the employees themselves instead of the business. Otherwise, an employee could effectively strip a business of its intellectual property assets, taking the trademark, patent, or copyrighted work with him, for his own profit or that of a rival company.

With the right strategy though, a small business can effectively leverage its intellectual property assets and mind potential pitfalls to grow strongly and successfully against the competition long into the future.

Is Your Samosa Trademarked?
Anuj Desai is an attorney at law, practicing
in the areas of intellectual property
and business litigation.

Did you know that your businessís trademark could end up being its greatest asset?

The entrepreneurial spirit runs strong in the South Asian community. As
metropolitan Atlanta continues to grow at a strong rate, attracting more desis to come lay down their roots in the city and its sprawling suburbs, small businesses serving this population niche are mushrooming everywhere. Indo-Pak grocery stores, fashion boutiques, restaurants, and more are dotting the malls and street corners. Also, and perhaps not as visible to everyone, there is a growth spurt in South Asian-owned technology and business services firms in the region. Many are highlighted in this magazine each month. Often, founders and managers of these thriving businesses get so caught up in the everyday grind of running their company and making a profit that they forget to plan for their long-term success.

This two-part article series provides an illustrative review of basic intellectual property principles and how they relate to your businessís success. This article takes a look at perhaps the most fun area of intellectual property: trademarks.

Did you know that your businessís trademark could end up being its greatest asset? A trademark can be anything even a unique samosa shape! It could be a name, symbol, design, etc. that which serves to distinguish the source of a product or service in a crowded marketplace. When a business uses a mark consistently and properly, the mark becomes a repository for goodwill and a paragon for the quality of the products and services it represents. Perhaps one of the best examples of this concept is the trademark Coca-Cola. Millions of dollars are spent by The Coca-Cola Company every year to ensure that its brand continues to be recognized as a symbol for quality beverages. Local examples of trademarks that have gained market recognition in the Atlanta community include Kruti for dance instruction, Saravana Bhavana for vegetarian South Indian dining, NetIP for services related to networking of Indian professionals, and many more. A strong and well recognized trademark ends up being a company s best marketing tool to retain customers and attract new ones.

Selecting a strong trademark and ensuring that others are not infringing on
your businessís trademark are essential to your marketing strategy. For example, how many grocery stores do you know with Patel in their name? Generally, descriptive trademarks or those that include a personís name do not serve well to distinguish the business in the consumer s eyes. On the other hand, a name like Bhojanic for a restaurant is well-conceived because while unique, it also invokes the desirable marketing imagery of a wonderful meal (bhojan) in a consumerís mind.

To ensure that others are not free-riding on a trademarkís goodwill, the owner must also remain vigilant and take legal action when necessary. This is even more important for a fledgling company that is growing its name in the marketplace, and seeking to avoid being confused with its many competitors. For example, when Burger King was just a small fast-food upstart, growing its franchise, it successfully limited an already existing company by the same name from expanding outside of that companyís original territory. Thanks to that strategic move, the Burger King franchise is known the world over today and maintains a strong brand presence in the fast-food industry.

While selecting a strong trademark and maintaining its integrity are
important, businesses seeking to grow nationally or internationally will likely want to obtain federal registration for their marks, for increased protection and benefits.

Further, a famous trademark can also generate revenue for its owner through crossmarketing and licensing arrangements.

Undoubtedly, no business can grow in todayís crowded marketplace without a sound trademark strategy. Hopefully, this article has encouraged you to take a look at your business s core marketing asset its trademarks and take steps to ensure they are strong and well recognized in the marketplace. Besides, developing your businessís brand and trademarks can be a fun and creative diversion to some of the more mundane business chores, like trying to balance the books around tax time!

Next month, we will look at how the complex concepts of patents and copyrights are quite applicable to a growing small business, even if its not a technology or media company.

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