Why intellectual property matters (also) in business

Interview with Claudia Jelea, intellectual property attorney

Every April 26 we celebrate World Intellectual Property Day. Why is intellectual property (IP) so important to be celebrated worldwide?

Because IP is about the new and the new is our future.

IP has a universal value as it is strongly linked to evolution, innovation and progress of the society. It refers to intellectual creations such as: books, music, software, databases, film, painting, photography, advertisements, maps, drawings and other literary and artistic works, inventions, designs, images, trademarks, names used as brands, etc.

April 26 was chosen as World IP Day back in 2000 by WIPO[1]’s member states. Since then, it is celebrated yearly to encourage discussions on the role played by IP in our ever-changing world and its contribution to global society. Each year WIPO sets a different topic for World IP Day. This year’s topic is music (under logo “Get up, Stand Up. For Music”); last year’s topic were movies.

But which exactly is the role played by IP?

Creativity and innovation have little value or meaning to society if not used and shared.

Here enters IP the scene as it aims to draw a balance between competing interests: interests of creators (musicians, software developers, writers, etc.) who seek to have exclusivity over their IP and those of society which tries to also benefit from the novelty and progress brought by the IP. Such interests need to be balanced via certain rules which give incentives and set the mechanisms to buy, sell, license, share and access the IP.

What type of businesses should pay special attention to IP?

IP runs throughout many types of business and it is a vital ingredient for their success. Essentially, any company holds a certain IP portfolio – it just needs to understand what IP assets are there and how to make best use of it.

Just to offer some examples of businesses which have more IP assets than others: any artistic or creative enterprise, music bands, businesses involved in software, apps and games development, web design, IT startups targeting an exit, publishing houses, franchises, advertising agencies, film production companies, record companies, broadcasters, TV and radio stations, telecom and digital technology companies, online shops, business with large trademark portfolios, goods manufacturers, pharma companies, museums, etc.

So individual persons who create something (like artists, musicians, etc.) should also take care of their IP. You told us that music is this year’s theme for World IP Day – can you give us an example of an artist who stood up for his/her IP?

As a rock music fan myself, I can easily think to at least one of the famous rock music lawsuits in history – Roger Waters vs Pink Floyd.

After Roger Waters left the band in 1985, he and his former bandmates battled over Pink Floyd’s name and music. Although Waters quit, his former bandmates started a new Pink Floyd album (‘A Momentary Lapse of Reason’). So he started a legal dispute and asked the court to stop them from using the Pink Floyd name without his permission – on the basis that Pink Floyd no longer existed. After a few years of legal battle, they finally settled; Waters accepted to give to the band the rights in Pink Floyd name and, in exchange, he got the rights in his album ‘The Wall’ (and in the concept of the giant inflatable pig present also in his concert from 2013 in Bucharest).

Pink Floyd faced another lawsuit in 2004 from Clare Torry who improvised the beautiful vocals on the original track ‘The great gig in the sky’ (released in 1973). She asked for songwriting royalties claiming that her contribution to the song represented co-authorship. The court ruled in her favor and they settled, but apparently the terms were never disclosed to the public.

One of today’s aspects with a big influence on IP rights is globalization. Can globalization impact a business’ IP? Which industries would you say are more exposed to these risks?

People are now connected in ways which were science-fiction material two-three decades ago. In many places in the world, we can access, read and share articles, books and other information from our devices, we can download music from Spotify or watch movies on the Internet via streaming services, we can register a .ro domain name which will be available to users all over the world, we have online shops and fashion designers who can sell their products to customers around the globe and so on.

What all these examples have in common is indeed globalization brought by the Internet and new technologies. And coming back to your question, yes, globalization can trigger major practical issues for the IP – which will eventually greatly impact the business.

In order to be competitive, many businesses have to go global. But with the digital age and with people not being limited by physical location anymore, IP infringement erupted on the Internet. We all hear about illegal download of content, piracy, domain names colliding with registered trademarks, copying the design of someone else’s website or logo, video or mobile games rip-off, selling of counterfeit goods, illegal online distribution of books – just to mention a few. There are many other examples of IP infringement due to globalization and these are the new risks that a business now should consider if it wants to stay in the global marketplace.

The fact that different jurisdictions have different national IP laws that might apply in a certain case, does not make things easier; on the contrary, conflict of laws complicate things even more. The dynamics of cyber-threat and the newest technologies trends made it harder for the IP legislation to adapt and to preserve the balance between the conflicting interests (exclusivity vs public benefit).

Probably, the most exposed businesses are those from the e-commerce, software, advertising, entertainment and creative industries. Their activity is strongly linked to the worldwide online public and this makes them easier targets for IP infringement.

Look only at the increasing number of disputes between Internet domain names and brands in the online environment. It might not matter that your Internet domain is .ro and your business is based exclusively in Romania. If this domain includes a name in which a competing company from other country has prior rights (let’s say a community trademark already registered in all EU-member states, including Romania), conflict might be inevitable at some point. And this is just the beginning as more and more domains are ‘released’ daily on the Internet.

To what extent is the Romanian business environment aware of the importance of IP?

You might be surprised to learn that Romanian business environment actually begins (or makes efforts) to understand the difference that IP assets can make to their businesses. Although it is a long way to go before they get to monetize their IP portfolio like in other countries, I am happy to notice in practice that many are on the right track.

Of course, such awareness also depends on the maturity and long-term goals of each business.

Simply put, on one hand, there are many companies in various industries which sole IP may be an unregistered trademark. They show no interest (and in some cases they do not need to show interest) in at least securing it with a formal registration with OSIM (Inventions and Trademark Office).

On the other hand, there are many software development companies or startups (for instance, developers of platforms, apps or mobile games) which are interested in leveraging their IP and are keen to learn how to best exploit it (they want to avoid giving away their work for too small fees to their international partners or investors). I am specifically talking here about copyright, industrial design and trademark in the works they create. Some of them even ask about patentability of certain IT solutions (although this is a bumpy road – legal and money wise) but at least they seem more aware of the potential risks and protection measures.

I believe there is room for raising awareness on IP among the local business environment. People still need to understand what is the key to use their IP assets smartly: treat trademarks, industrial designs, copyright, trade secrets, patents (and all other components of IP) as tools for setting up and nurturing business relationships with other partners (joint ventures, strategic alliances, licensing, etc.) – for cooperation not merely to block competitors.

You currently run your own practice. Are things any different from working for a big law firm as you did in the past?

No and yes.

No – because I was lucky enough to be able to continue working in the same niche areas as before launching my boutique practice. This comes with the advantage that I can offer my clients the same level of professional care I was already used to.

And yes for certain aspects. Clients are different. Not having a well-known ‘umbrella’ over your head makes it quite a challenge to get noticed.

As we all know, no change is easily embraced. Especially when it brings certain risks. For me, the insecurity I faced in the very beginning as to bringing in new business turned out to be a boomerang. It came back with a strong desire to rapidly develop certain business skills that I (and many lawyers) lacked while working long hours in a law firm. And this only happened when a dilemma popped-up: while I had all necessary legal skills and knowledge to continue helping clients, I had no clients to help. So I unconsciously shifted from the technically-skilled person and took the double role of expert – entrepreneur. This brought a huge change in my daily activities.

My entire professional strategy and vision are now changed. Business, technical and soft skills are equally important, one needs to learn to artfully blend them. If one is missing, a (prospective) client “goes missing”. This is for business owners and lawyers alike as they all stumble over the same market difficulties.

Why did you choose a specialization in IP?

For two simple reasons. First, because I see it as the most dynamic, creative and ‘human’ side of law. It allows me to interact with innovators and to access certain aspects of my personality that I really like. And second, early in my career I was inspired by a few passionate colleagues.

About Claudia Jelea

Claudia Jelea focuses her practice mainly on intellectual property, Internet and IT&C law. She likes to stay connected to this dynamic side of law which tries to keep up with new technologies and the digital environment. She is both a registered IP attorney and a lawyer. As for fun, Claudia is a painting enthusiast and enjoys music and yoga.

[1] (WIPO is the World Intellectual Property Organization. Romania joined WIPO in 1970.)

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