By Guest Writer S. Quanaah [Saladin Allah]
Intellectual Property: How Protected Are We?
It is an actual fact that the United States is the most "litigious society" in the world. Litigious means 'prone to engage in legal maneuvers or lawsuits.' Our disagreement with that statement does not change that actual fact nor does it prepare us to do something about it. That actual fact is especially important to understand in this digital age of content harvesting, online marketplace expansion, blockchain technology, cryptocurrency, and a 552.17% increase in NFT trademark submissions between August 2021 and January 2022.
In my article The Content Era: 2022 is the Year of Creatives and Entrepreneurs I explained, "we are now in a Content Era. Streaming services are in global competition over it, Podcasters and Bloggers need it to survive every week and it's like that Frank Lucas [American Gangster] blue magic to Instagram, Facebook, Twitter, TikTok and YouTube users. For THAT Economy to sustain itself Content must be consistently harvested from Creatives and Entrepreneurs who are sometimes trafficked through digital internet rings..." Content is another name for intellectual property [IP] or legal assets; the basis of this article.
During the COVID-19 shutdown, many people took advantage of that time to learn new things and develop new skills. I've known folks who completed Herbology courses, Music Engineering programs, and apprenticeships in different industries. While I had already studied the subject, I invested my time into learning how to file provisional patents, utility patents and trademarks. One of the things that I immediately learned is the small number of patent and trademark lawyers, especially black lawyers, in this specialized area and the increasing demand for their services. By learning this skill I became more proficient in this specialized field of law. Even more proficient than lawyers who worked in other areas of law.
My reasoning for learning this skill was to ultimately provide this service to folks who had no knowledge and/or capital to file a trademark or patent; which costs about $400 to trademark something and about $18,000 to patent an idea. In addition to the various projects that I was already involved in, and my peripheral research, this investment began my direct experience with securing legal assets or intellectual property. None of this article is based upon a casual Google search, a Wikipedia scan, or hearsay from folks on YouTube talking about what they have never done and do not own.
Before we go any further let me first define what a legal asset or intellectual property is. A legal asset is defined as “real or personal property that has value.” Intellectual property [IP] refers to “valuable assets that we legally own such as inventions; literary and artistic works; designs; symbols, names, and images.” The value or worth of a legal asset or intellectual property is inherent. Meaning, it is essential or built-in its creation. It is not an asset because someone acknowledges or likes it or not. It is an asset because its nature is valuable. It is sort of like when we say the Black folks are divine. Our value is not because someone acknowledges or likes it or not. We are divine, or an asset, because our nature is valuable. When we create inventions; literary and artistic works; designs; symbols, names, and images they are also valuable.
If you have been following the Russian-Ukrainian conflict, in response to the United States sanctions on Russia, Russia has stripped away legal asset/intellectual property rights from U.S. companies doing business in Russia, along with foreign companies from 23 other “unfriendly” territories. According to the high-profile trademark attorney Josh Gerben, “companies like McDonald's and Starbucks that have left Russia to protest its invasion of Ukraine can do little when Russian businesses steal their trademarks. In fact, trademark applications were filed in Russia this week that bore a striking resemblance to marks belonging to Ikea, Instagram (FB), McDonald's, and Starbucks.
These companies can't immediately fight back because challenges for unauthorized use are largely limited to Russian courts.” For those of us who have carelessly looked at legal assets/intellectual property as insignificant, even after seeing Black folks get countless ideas stolen from us since slavery times, this political power move by Russia to shift the global economic landscape should make us reconsider our stance on the value of legal assets/intellectual property.
If this is insignificant, Russian would not have made such a significant move. When we do recognize this value, the questions we need to ask ourselves are what can we do to legally protect ourselves and our assets in a litigious society? Do we have health and dental insurance? Do we own property? Do we have a Last Will and Testament? Do we own any patents or trademarks? Do we have any life insurance policies? Do we have a marriage license? These and various other legal protections are just some things to seriously think about, especially for our families and future generations.
With this knowledge of legal assets/intellectual property, I was able to successfully file a provisional and utility patent for a unique fuel cell technology.
Before my business partner and I even discuss this patent with companies we ensure that a three-year NDA [Non-Disclosure Agreement] is signed and notarized first. Because of our invention's inherent value, an NDA is a standard legal document that is used to protect the value and confidentiality of legal assets/intellectual property before you discuss them. This is the reason why we should not openly discuss specific matters related to a trademark filing, a patent, or any legal assets/intellectual property in the public domain. It compromises the security of those legal assets/intellectual property.
When the Washington [now "Commanders"] NFL football organization sought to rename their team they never had public discussions about the potential name of the team. In fact, they went as far as filing the original trademark in a foreign country whose trademark databases are difficult to search online. Months later the organization then filed an application with the United States Patent and Trademark Office [USPTO]. Knowing that this trademark information would be publicly available and published with USPTO, their filing was protected because the trademark application was based upon the earlier filing date in the foreign country. See, once a trademark is filed, there is a 30-day window to oppose/challenge its registration after the USPTO publishes the application for opposition.
Following the above method of filing in a foreign jurisdiction is a workaround to limit the public's capacity to oppose a registration. If Lebron James has received legal guidance from a patent and trademark law firm then I am sure that he used this method before it was recently announced that he filed 4 new USPTO trademarks in the names of LEBRON JAMES, LEBRON, KING JAMES and CHOSEN1 related to the metaverse. Understanding this, when people openly discuss the specifics of a legal asset/intellectual property in a public forum it only informs the public of three more facts related to our litigious society:
1.) Those people do not actually understand or possibly do not own legal assets/intellectual property.
2.) Those people are legally vulnerable, and a liability to others, because of their ignorance of law and tech illiteracy.
3.) Those people are actively promoting "trademark squatting" where someone other than the original owner(s) can acquire that legal asset/intellectual property and sell it back for a profit.
I was once involved in confidential discussions regarding a unique legal asset/intellectual property that I personally secured in order to transfer ownership to a collective body of people. While I did not have those who participated in these confidential discussions sign an NDA, I did emphasize the importance of privacy and requested that they not share the specific details of those confidential discussions in the public domain. A short time after, I was disappointed to learn that some of the participants were sharing those specifics, and misinformation regarding this unique legal asset/intellectual property, in the public domain.
While I did cover a great deal of legal territory using a power-point presentation that included an extensive FAQ segment, it was unfortunate to learn that some of those who participated in those discussions did not understand the importance of confidentiality or simply did not care. Either way, lacking that carelessness is a liability in an expanding litigious society.
So I ask again, what can we do to legally protect ourselves and our assets in a litigious society? Do we have health and dental insurance? Do we own property? Do we have a Last Will and Testament? Do we own any patents or trademarks? Do we have any life insurance policies? Do we have a marriage license? These and various other legal protections are just some things to seriously think about, especially for our families and future generations.
This society is drastically changing with the exponential growth of technology. Those changes are not favorable for those of us who have little to no control over any legal assets/intellectual property. As black people cross the diaspora, we cannot allow those changes to happen around us. If we don't get it together we will be talking about these days, like our elders reminisce about the olden days, with no visible evidence that these days ever even existed. Except for a street sign, of course, to mark what once was.
S. Quanaah [Saladin Allah] is an author, educator, human rights commissioner in the city of Niagara Falls, and founder of the Atlantis School For Gifted Youngsters [Google #AtlantisBuild]. Email: email@example.com