• In the previous interview – highly appreciated by Artei Alba readers – we spoke with the intellectual property rights expert about trademarks in general, with practical examples of what can be protected and the monopoly that a good trademark offers.
We now wish to address protection in the area of interest for our field, through various intellectual property instruments (trademark, possibly patent or other forms), in the context in which the National Register of Sacred Recipes was recently updated by MARD.
1. What can you tell us about this topic? What role do the systems developed by authorities play in the field of intellectual property?
All systems developed by the state, and not just the state, all national and now international legislative systems, such as the European Community, including the Registry of Sacred Recipes, have one goal: to guarantee a company, in fact a manufacturer, that it is unique when it has created something and that only it will earn money from that uniqueness.
This is essential and this is where the role of a intellectual property specialistTo help navigate the legislative system, through the multiple tools made available to the manufacturer to protect its uniqueness.
When you feel like you've done something different, that you have a unique product, you need to turn to someone who knows how to do it. Because it's possible that you might think of a product that seems miraculous to you, for example a very long-leavened bread, but it's a traditional product registered in Slovenia or Bulgaria – and this is a real example.
2. When I have a unique, original idea and I want to protect it, what do I do? What is the first step?
First of all, the production process, which will result in such a unique product, is secured by a patent. More precisely, one goes to a specialist, where the entire technological process of obtaining the respective product is described.
A patent means that no one else will be able to do that procedure in the order I did it, according to the description I made, because the legislation guaranteed me the right of ownership through that certificate. This will help me in case someone tries to copy me. So, after I get the certificate, if I know that someone is making the same product as me, I go to the state authorities with that certificate and request that the person who is copying me be investigated.
The one who creates a product shouldn't even think about how they should protect themselves or what they should protect, how they should do it, where to look, what to look for. Because this is where the role of the specialist comes in. He knows exactly what he should protect.
3. Let's talk a little about PDO (Protected Designation of Origin) and PGI (Protected Geographical Indication) products.
We often see PDO or IGP certification on the labels of certain products, such as parmesan. These are European quality systems, which we have also aligned ourselves with.
PDO means that the raw material and the entire production process belong to a place in a defined region, such as Telemeaua de Ibănești, while PGI requires that only one stage (production, processing or packaging) be carried out in that area. As an example, we have Pleșcoi sausages, where it is not mandatory that the raw material, the meat, be from the area, but that the technological process be respected.
Both certifications guarantee quality and authenticity, protecting manufacturers from counterfeiting. And when the product has either of the two logos on the label, it is perceived differently by the consumer. He does not even look at the ingredients, knowing that, through the certifications it has, it is a trustworthy product.
4. And how are certifications obtained? By submitting the file through a specialized firm or directly to the state authorities?
They can also be filed directly, but I wouldn't recommend it. When you have a unique product, an original process, something of value, use a specialized firm. Because, not understanding the principle of intellectual property, you risk not filing the file correctly and then complaining that the system is not good.
And yes, a company specialized in intellectual property rights deals with this type of certification in addition to patents, trademarks, copyrights, etc. That's our role as an intellectual property agency: when a person does something different, whatever he feels he did differently – be it the recipe, the packaging, the promotion, the name, the region where the ingredients he uses are used – he comes to us and we will take care of obtaining the certification of his uniqueness, so that he can sell that "something" which differentiates it.
5. And how extensive is the research that the company specialized in intellectual property rights carries out? On what market? On what territory?
The client is asked from the beginning where he thought he wanted to sell the product. If he says only domestically, the research will focus on Romania. However, there are cases when we will tell you: "Look, this product looks so good that it's possible that someone from Ireland could at least order it for you online." And if your product arrives in Ireland, in this form, and there are others there, you won't be able to sell it. Or even, without knowing it, you will sell it and you will have some counterfeiting lawsuits there. Because in Romania you were original, but in Ireland you weren't."
You can protect yourself later, because if we tell him "protection" designates any form of protecting that product, whether it's through a patent, a trademark, a design, but it would be better to think about it from the beginning to avoid problems later. Let's say you are protected at the national level, that's all you could do at that time. And then you want to expand at the European level. It's possible, yes. But there are risks.
The biggest risk is that it will not be protected by a patent at the European level. That is, I stay with the patent valid for 20 years in Romania, where no one can copy me. But in Hungary, for example, everyone has it freely. Because all patents are published. They become public the moment they grant you the certificate. So that everyone knows that you have a patent. And then someone can check if your patent is also valid for another area. And this is normal practice. This means that the one who wants to protect himself must be prudent from the beginning and this is where specialized consultancy comes in.
6. What if the client wants to be protected globally?
It is possible, yes. But at a global level it does not mean that documentation must automatically be submitted for all countries. And that is because no one thinks that they can sell in all countries on the globe. It can be done, but the financial effort is not justified.
Romania, because it is part of the EU, is part of all the EU's international treaties, which provide for the protection of intellectual property. Even in the United States of America. So, if I get my PDO in the EU, I have the same rights as Parmesan. Parmesan, when it goes to the United States, if someone does not respect its rights, it can address the authorities there, because there are treaties between the United States and Europe.
And then I repeat: there are so many forms of protection that it is very difficult to cover them all on your own. It is necessary to contact a specialist.
7. I have submitted the protection application? What do I do now? Do I wait until the certificate is issued?
No. The producer is protected from the moment he files the application. All protection, regardless of the form of protection.
8. And what if after this period, after a year, for example, since you started producing, your application is rejected?
It doesn't end there. And let me explain why. When the application is filed and there is any doubt about the originality, the client is notified from the beginning. And then he decides whether he wants to start producing now and see what happens or wait a little longer. Because the applications are published and there is a term for which there is the right of opposition. That is, if someone thinks that the product in question resembles his own, he can challenge the granting of protection.
If, in two months or three months in other systems, no one has filed an opposition, then, from that moment on, the office starts the next steps towards granting the certificate. This is the principle of intellectual property: to obtain a right, they first make it public to give those interested the opportunity to express their disagreement. After that, the examination begins.
We need to understand another thing: ideas are not protected. Only their materialization is protected. Thoughts come to all of us, many and often. But the effort means taking this thought and putting it somewhere. Making it concrete. Maybe 100 other people before me had similar ideas. But I am the first to take the next step in materializing my idea.
9. Concretely, for the materialization "good thought": What exactly do you need?
After you have the idea, you describe it and think about how its materialization will reach people. That's where you start to be different. You were different with the idea, but after that, communication, everything else, is done differently.
Let's take an example from your field: I want to make a bread with pine seeds. After the idea came to me, because I've never seen anything like it anywhere before, I have to describe the entire process of obtaining it: how many seeds to put, how it can be obtained from a technological point of view, in what combinations of ingredients, etc.
But before all this, I go to a specialist and consult with him.: "Look, I want to make a pine nut bread. Does anyone else have a patent for this?" It is important, before starting to materialize the product and develop the technological process, to see if there is anything similar already. It is essential! And I emphasize that in the relationship with companies specializing in intellectual property rights there is a confidentiality clause.
I checked, there is no patent and I created the bread, arriving at a recipe that I say is patentable. That is, it will be unique. At that moment, you have a unique product in Romania, ideal also at the European level. Because if you expect high sales and you have power and you believe that your idea will be successful, I recommend that you protect yourself at the European level. I can make it so that you have a three-year thinking time, but for some forms of protection you have to be determined from the start, as is the case with community trademarks.
Here I make a mention. The specialized firm does not search the market and this is a very important aspect. Only the filed patents are checked. The client is the one who comes and says that he has an original idea that he wants to patent. I have had cases where someone filed a patent for a product that was already on the market, but without protection. It came to a contestation and the one who was not protected proved to the court that the idea was stolen from him. This is where the concept of bad faith comes into play, which, when proven in court, leads to the cancellation of the patent.
10. At the I managed to go from idea to product. What do I do now?
Assuming that we followed the correct steps by calling on a specialist and having an original idea, we also developed the technological process for obtaining the product, now we are filing the patent application. And you will be the only one who can make bread with pine seeds, but in this format. That is, if someone finds another formula for making bread with pine seeds, through a different process, it is their right. If the people at the patent office analyze and say that the technological process is different, the resulting product will be different.
And then the question arises: "Are they different products? Or is it the same product, just a little different?" Because the patent people say it's different... But, from a commercial point of view, when you come and make another pine nut bread, you're helping the first one. Because people will think that he's developed, he's expanded. When you copy someone, you're actually helping them in the end.
11. What if, say, a pine nut bread was made in 1900 and I come along now and make it and get a patent? What happens to the heirs of that recipe?
If I'm bringing back to life a recipe that hasn't been used in a very long time, logically, I'm not stealing from anyone. I'm not trying to take someone else's benefits.
If the heirs of the person who invented the recipe did not use it, they only have some moral rights over that recipe. But they do not have commercial rights. I mean, yes, Dad X made that bread recipe, no one knew it until now, no one uses it, I found it, the producer, I appropriated it, I start selling, you can't tell me that I'm selling because your grandfather made the recipe first. I can recognize their paternity, but I have no reason to pay money for it.
12. We have the product, we have the patent on it. What's next?
How do we take care of its image, how do we bring it to life! You have to put its name first. And the name, when you choose it, has to help you commercially and not copy someone else. And that's how it appears Italian and international brands-, which must be automatically protected. The team that will be in charge of selling the product is involved in this stage. A list of names is drawn up, which the specialized firm analyzes according to the risks. Usually, an application is filed for several words, to see which ones pass the opposability period.
And after that the producer focuses on something else, together with the advertising agency: design, logo. And these need to be protected. All your effort should be protected.
The next step is to present the product, something that makes it unique and easily identifiable for the customer, the best approach being a special packaging. And the packaging is registered, because people choose you based on the packaging. And it protects you because, if someone puts out a similar packaging – there are quite a few people who don't read the company name on the packaging exactly – you risk losing customers.
This differentiates you from the rest. Now you can rest easy. And all serious companies do this for a reason. Why? If, say, all the production halls deteriorate and all the equipment breaks down, what are you left with? With the brand! With which you go to another hall or sell it to someone else.
Yes, some who are bigger buy you! But not for the halls, not for the machines. They are interested in the connection between the client and the brand, the market share. That's not why we are angry, that you see people spending 1500 euros on a chair, but they are not interested in protecting their brand! But if you have a dispute later, only then will you wake up.
13. How can a producer be specifically convinced to apply for protection?
I think the only argument is to think about whether they would have anyone to sell the name to. And to also do an exercise in imagination: what would it be like if they had to give up either the name or the packaging?
The truth of the market is that, by and large, I suspect, everyone makes bread pretty much the same. I'm not referring to the very creative ones who have special recipes. Just to those who sell bread in bulk: change the packaging tomorrow! If someone comes tomorrow and tells you to change the packaging and you can change the packaging and sell it the same way, you have no business. You're not a brand! But there won't be anything left behind either.
Let's say you sell bread for 1,50 lei and you are there, present on the market. People choose you for the price of 1,50 lei no matter what packaging you have or what your name is. But if someone comes along who sells for 1,25 lei, you either sell for 1,25 lei, or you leave. If you have a brand, you can sell for 1,75 lei from tomorrow. Because people choose the brand, not the price.
The even more interesting part is that you can register the brand in accounting as an asset. So even accounting recognizes that they are assets, not expenses. Because when someone comes to evaluate your company, they are listed next to cars and buildings. The positioning on the market, where you are, how you are, is based on the brand. It's obvious!
The name makes me money. The packaging makes me money. The position of the product on the shelf makes me money. Whatever sells! That's where the discussion starts. Protect yourself! In whatever form you choose to protect yourself, you protect yourself to make more money and after you make more money, if you want to retire, you can sell a brand. That's intellectual property.
14. Since our previous interview, has there been a concrete increase in this regard? Have more applications been filed to protect intellectual property?
In Romania, last year, patents were filed exactly as in 1926. But even worse, 78% of the patents now are filed by faculties that are required to have patents or else they are downgraded. Does this mean we have no more ideas? No, no one patents anymore because we produce what someone else patents. In Poland, about 30 times more patents were filed than in Romania.
The first sign of normal, organic, natural growth of a country is when activity in the field of intellectual property begins to increase. This is how entrepreneurs are selected. I mean, to be successful you have to be determined. It's not easy, the competition is great. Some inherent obstacles are put in place, so that only those who are very determined can reach the end. It's normal for it to be like that.
When you are different in order to make money, protect yourself so that only you can make money from that thing! This is where the entrepreneur's openness to listening to someone else comes in. A major skill of an entrepreneur is to form a team of professionals, because there will come a time when he will not be able to control everything, a time when he must be willing to listen to others and make decisions together.
For more details about protecting intellectual property rights: alex.filip@weizmann.eu.
Interview conducted by Gabriela Dan, Editor-in-Chief of Arta Albă
Read on White Art and: Interview with Radu Bozocea, expert in intellectual property rights: "the most hunted businesses are those of monopoly. The brand gives you a monopoly…”
