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Kerviel plans to file a plaint for unfair dismissal and extract
pensation from his employer based around three points of defence。
First； Societé Générale appears to have terminated his contract without
a face…to…face meeting； as is required by French labour laws。
Second； the bank’s losses may only have occurred while unwinding
Kerviel’s positions in January 2008； during what was an unprecedented
period of global stock market turbulence。 This situation makes it unclear
exactly how much responsibility Kerviel bears for the total losses。
Third； he had no obvious motive and seems to have made no personal
profit from his trades。 In fact his behaviour has made him a folk hero in
France； with over 150 Facebook groups showing an interest in his fate。
His chances of success in an unfair dismissal case look at least fair。 In
April 2007； Laura Zubulake； 44； won ￡15。5 million from UBS in New York
after a male executive said she was fired because she was ‘old and
ugly and she can’t do the job’。 Three years earlier； Elizabeth Weston
received a ￡1 million settlement from Merrill Lynch over a colleague’s
‘lewd’ ments over a Christmas lunch。
Although Kerviel’s actions put him at the top of the ‘rogue trader’ list；
he is unlikely to head the unfair dismissal stakes。 That title is likely to go
to six women； five female employees in New York and one at London
office of German…owned bank Dresdner Kleinwort Wasserstein （DKW）。
They are suing for ￡800 million over allegations that the pany
refused to promote them and discriminated against them by allowing
after…hours trips to strip clubs for male colleagues and humiliating sexual
banter in the office。
186 The Thirty…Day MBA
the market。 It is equally important that such an advantage cannot be easily
copied。 In other words； there is a barrier to entry preventing others from
following the same path to riches。 The advantage can be anything – the
business name （Body Shop）； a catchy slogan （Never knowingly undersold
– John Lewis）； some technological wizardry （Dolby Noise Reduction）； an
instantly recognizable logo （Google） or even a jingle such as that used by
Microso。。’s Windows operating system during start…up。
The generic title covering this area is ‘intellectual property’； usually
shortened by MBAs to IP； and it splits down into a number of distinct areas。
Businesses spend a lot of time and money creating and protecting IP； so you
need at least an appreciation of the legal issues involved。 The case below
is an example of how things can go wrong from the outset。 You should
also read up about Dyson’s ‘Patent Nightmare’ （dyson。uk/about/
story/patent。asp）； as graphic a description of a contest between David and
Goliath as you are likely to find。
When Mark Zucherberg； then aged 20； started Facebook from his
college dorm back in 2004 with two fellow students； he could hardly
have been aware of how the business would pan out。 Facebook is a
social networking website on which users have to put their real names
and e…mail addresses in order to register； then they can contact current
and past friends and colleagues to swap photos； news and gossip。
Within three years the pany was on track to make 100 million sales；
partly on the back of a big order from Microsoft that appears to have
set its sights on Facebook as either a partner or an acquisition target。
Zuckerberg； wearing jeans； Adidas sandals and a fleece； looks a bit
like a latter…day Steve Jobs； Apple’s founder。 He also shares something
else in mon with Jobs。 He has a gigantic intellectual property legal
dispute on his hands。 For three years he has been dealing with a law suit
brought by three fellow Harvard students who claim； in effect； that he
stole the Facebook concept from them。
Patents
A patent can be regarded as a contract between an inventor and the state。
The state agrees with the inventor that if he or she is prepared to publish
details of the invention in a set form and if it appears that he or she has made
a real advance； the state will then grant the inventor a ‘monopoly’ on the
invention for 20 years。 The inventor uses the monopoly period to manufacture
and sell his or her innovation； petitors can read the published
specifications and glean ideas for their research； or they can approach the
inventor and offer to help to develop the idea under licence。
Business Law 187
However； the granting of a patent doesn’t mean that the proprietor is
automatically free to make； use or sell the invention him… or herself； since to
do so might involve infringing an earlier patent that has not yet expired。
A patent really only allows the inventor to stop another person using
the particular device that forms the subject of the patent。 The state does not
guarantee validity of a patent either； so it is not unmon for patents to be
challenged through the courts。
What you can patent
What inventions can you patent？ The basic rules are that an invention must
be new； must involve an inventive step and must be capable of industrial
exploitation。
You can’t patent scientific/mathematical theories or mental processes；
puter programs or ideas that might encourage offensive； immoral
or antisocial behaviour。 New medicines are patentable but not medical
methods of treatment。 Neither can you have just rediscovered a longforgo
。。en idea （knowingly or unknowingly）。
If you want to apply for a patent； it is essential not to disclose your idea
in non…confidential circumstances。 If you do； your invention is already
‘published’ in the eyes of the law； and this could well invalidate your
application。
Copyright
Copyright gives protection against the unlicensed copying of original
artistic and creative works – articles； books； paintings； films； plays； songs；
music； engineering drawings。 To claim copyright； the item in question
should carry this symbol： 。 （author’s name） （date）。 You can take the
further step of recording the date on which the work was pleted； for
a moderate fee； with the Registrar at Stationers’ Hall。 This； though； is an
unusual precaution to take and probably only necessary if you anticipate
an infringement。
Copyright protection in the UK lasts for 70 years a。。er the death of the
person who holds the copyright； or 50 years a。。er publication if this is
later。
Copyright is infringed only if more than a ‘substantial’ part of your work
is reproduced （ie issued for sale to the public） without your permission； but
since there is no formal registration of copyright the question of whether or
not your work is protected usually has to be decided in a court of law。
Designs
You can register the shape； design or decorative features of a mercial
product if it is new； original； never published before or – if already known
188 The Thirty…Day MBA
– never before applied to the product you have in mind。 Protection is
intended to apply to industrial articles to be produced in quantities of more
than 50。 Design registration applies only to features that appeal to the eye
– not to the way the article functions。
To register a design； you should apply to the Design Registry and send
a specimen or photograph of the design plus a registration fee （currently
￡90）。 The specimen or photograph is examined to see whether it is new
or original and plies with other registration requirements。 If it does；
a certification of registration is issued which gives you； the proprietor； the
sole right to manufacture； sell or use in business articles of that design。
Protection lasts for a maximum of 25 years。 You can handle the design
registration yourself； but； again； it might be preferable to let a specialist do
it for you。 There is no register of design agents； but most patent agents are
well versed in design law。
Trademarks and logos
A trademark is the symbol by which the goods or services of a particular
manufacturer or trader can be identified。 It can be a word； a signature； a
monogram； a picture； a logo or a bination of these。
To qualify for registration the trademark must be distinctive； must not
be deceptive and must not be capable of confusion with marks already
registered。 Excluded are misleading marks； national flags； royal crests and
insignia of the armed forces。 A trademark can apply only to tangible goods；
not services （although pressure is mounting for this to be changed）。
To register a trademark； you or your agent should first conduct preliminary
searches at the trademarks branch of the Patent Office to check there
are no conflicting marks already in existence。 You then apply for registration
on the official trademark form and pay a fee （currently ￡200）。 Registration
is initially for 10 years。 A。。er this； it can be renewed for periods of 10 years
at a time； indefinitely。
It isn’t mandatory to register a trademark。 If an unregistered trademark
has been used for some time and could be construed as closely associated
with a product by customers； it will have acquired a ‘reputation’； which will
give it some protection legally； but registration makes it much simpler for
the owners to have recourse against any person who infringes the mark。
Names
Business and domain names involve a cross…section of IP issues。 A good
name； in effect； can bee a one… or two…word summary of your marketing
strategy； Body Shop； Toys ‘R’ Us； Kwik…Fit Exhausts are good examples。
Many panies add a slogan to explain to customers and employees alike
Business Law 189
‘how they do it’。 Cobra Beer’s slogan ‘Unusual thing； excellence’ focuses
a。。ention on quality and distinctiveness。 The name； slogan and logo bine
to be the most visible tip of the iceberg in a corporate munications effort
and as such need a special effort to protect。
Business name
When you choose a business name； you are also choosing an identity； so it
should reflect：
。 who you are；
。 what you do；
。 how you do it。
Given all the marketing investment you will make in your pany
name； you should check with a trademark agent whether you can protect
your chosen name （descriptive words； surnames and place names are not
normally allowed except a。。er long use）。 Also； check if the name is one of
the 90 or ‘controlled’ names such as bank； royal or international for which
special permission is needed。 Limited panies have to submit their
choice of name to the panies Registration Office along with the other
documents required for registration。 It will be accepted unless there is
another pany with that name on the register or the Registrar considers
the name to be obscene； offensive or illegal。
Registering domains
Internet presence requires a domain name； ideally one that captures the
essence of your business neatly so that you will e up readily on search
engines and is as close as possible to your business name。 Once a business
name is registered as a trademark （see earlier in this chapter）； you may （as
current case law develops） be able to prevent another business from using
it as a domain name on the internet。
Registering a domain name is simple； but as hundreds of domain names
are registered every day and you must choose a name that has not already
been registered； you need to have a selection of domain names to hand in
case your first choice is unavailable。 These need only be slight variations；
for example Cobra Beer could have been listed as Cobra…Beer； CobraBeer
or even Cobra Indian Beer； if the original name was not available。 These
would all have been more or less equally effective in terms of search engine
visibility。
190 The Thirty…Day MBA
Help and advice on intellectual property
matters
。 UK Intellectual Property Office （ipo。gov。uk） has all the information
needed to patent； trademark； copyright or register a design。
。 International intellectual property information at： European Patent
Office （epo）； US Patent and Trade Mark Office （uspto。
gov） and the World Intellectual Property Association （wipo。int）。
。 The Chartered Institute of Patents and A。。orneys （cipa。uk）
and the Institute of Trade Mark A。。orneys （itma。uk）； despite
their specialized…sounding names； can help wi