by Rafael Dias de Lima
February 26, 2014
New products and services being launched. New concepts. New advertising. New creations/innovations. Paradigm shift. More aggressive or defensive positioning in the market.
The “creation and launch” of new products and services almost always results in high expectations both for consumers and the market, bringing with it new market opportunities, new trends and primarily new protection in the field of intellectual property (trademarks, industrial designs, patents, copyright, etc.) with the aim of preserving these new maneuvers in the market for as long as possible and preventing “rivals” from benefitting from any success achieved.
And when this two-sided “creation/launch” achieves great success with the consumers in a particular company, some of its rivals will ask themselves “Why didn’t we think of this before?”, “Why didn’t we anticipate this in some way and avoid a surprise?”, “How will this protection affect us in the market?”, “How can we be on guard so that this doesn’t happen again and avoid loss in market share?”, etc..
It is obvious that a lot of companies are only concerned about protecting their intangible assets and keeping them safe from third parties. These companies heed the following guideline “I have a way of protecting myself”. It is a guideline that in reality all companies must follow in order to protect their own assets that derive from creations/innovations in the market in which they operate.
However, from what is currently observed in the market itself, everything indicates that the phrase “I have a way of protecting myself”. sounds like a duty for all businesses and it is too little to realize the ambitions in view of what is required in today’s competitive market.
Many of you must have already seen various articles on famous sporting trainers which say that each game becomes a duty to know and study the techniques/strategies of your opponent beforehand so that one can beat him. Just as he knows you (“his rival”), you also have the duty of knowing him.
It’s like a game of chess. A player must know how to attack and defend at the same time with precision and cunning.
And it is clear with each passing day that the market becomes more aggressive, seeks more objective and practical answers, as well as satisfactory results and in a short space of time. In summary, there is no time for amateurism, much less for following a fruitless route with no results.
Intellectual Property provides several legal possibilities and alternatives to know your opponent better. Sometimes, like chess, it is possible to anticipate and know your rival’s next step.
These legal “weapons” provided by Intellectual Property supply a range of alternatives for the company, in addition to knowing how to explore and understand your competitor better (through launches, trends, innovations, advertising, etc.).
This trend demanded by the market itself (competitor mapping) must be handled by lawyers. There was a time when a lawyer’s duty was to know his client meticulously: what makes the difference nowadays is knowing his client’s rival meticulously.
Along with a lawyer acting in the area of intellectual property, a company can sift through all the legal weapons at its disposal in order to have a complete X-RAY of its rivals at hand so that it can position itself increasingly strategically in the market.
As happens in diverse types of sport, the extent to which an adversary studies and gets to know his opponent better, the latter will be forced to change strategies and techniques of his “game plan”, seeking new creations/innovations with the aim of gradually gaining more space within the competitive market in which amateurs are being left behind.
Just as the “game” is more competitive within the market, companies that go the extra mile and incessantly seek the leadership are those that have been getting to know their “rivals” through the diverse “weapons” supplied by Intellectual Property.
And hence arises the question “What could I know about the legal tools provided by Intllectual Property?”. They are practically the same as those used by the companies themselves in the search for innovation/creations.
A. Search in Brazil and abroad of your rival’s entire portfolio to start the study and to get to know them better;
B. Keep an active report of you rival’s trademarks/patents in Brazil (principally as soon as they publish their new creations/inventions) in order to evaluate new steps and even to avoid some surprises;
C. Verify, through these reports and other information, competitors’ new trends and innovations;
D. Study assets that are not being used anymore by rivals and try to understand the strategic reason and use this to your advantage;
E. Prepare an historical account of your adversary’s protection in Brazil and/or abroad (in order to know which countries your competitor is investing in and introducing themselves);
F. Understand not only Brazilian IP legislation, but primarily that abroad (at least in the countries strategic for your company) in order to size up what represents new launches and trends in the market;
G. Know if your rival’s trend is to conserve its protection only on the internal market or to extend it abroad (also analyze and define your rival’s principal countries of operation).
H. Challenge all your rival’s innovations/creations with advertising, market trends, and even arguments adopted in court cases;
I. Seasonal analysis, so as to know and understand why your competitor invests and protects more in industrial property at certain times (know the frequency with which your rival launches new products/services);
J. Make an X-RAY of your competitor also in the judicial sphere in order to know their strategy of attack and defense with respect to intellectual property.
The indicators above are some examples of the countless tools for intellectual property abroad and in Brazil that are capable of providing a competitive advantage. A company that knows how to handle these tools best will certainly have an improved performance over their competitors.
Thus the phrase, “I have a way of protecting myself” has been weakened and substituted by the phrase “I have a way of defending, attacking and knowing my adversary precisely” within the sphere of intellectual property.