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Leyton’s Export News Opportunity videos are aimed at helping companies build their export projects. A prior article was written to summarize a few core points on the international trade environment; however, major regional trade agreements and international sanctions imposed by the Federal Government are not the only factors that companies must follow to understand the political-economic situation of today’s intricate world. Companies must undertake their own due diligence.
Once this due diligence has been performed, a project plan must be developed, which this article will focus on. As for any project, the triple constraint model (Time, Scope, Costs) applies and the company must be fully aware of what will be expected to operate in the best way possible way given the assets and weaknesses of their company. Assets will be at the center of this article, including how to identify, manage and protect intellectual property from your international development.
IP is one of the most important intangible assets a company can have. Hence, there must be a proper strategy to protect it to prevent anyone from copying you; bring value to your business – in the case you intend to sell your company it; sell or license the IP to a third party; keep the IP’s proofs of rights in your armory if you suspect you will be sued and want to countersue. If not properly addressed, advantages granted by a properly managed intellectual property can turn into a disaster, as a competitor, in a foreign market, could own your product, name, or brand before you.
Indeed, intellectual property rights (IPR) such as patents and trademarks, are enforceable only in the territory where they are granted. For example, a patent issued by the Canadian Intellectual Property Office has no value outside Canada. Consequently, if anyone is seeking to protect its IPR abroad, it is necessary to file a proper application in each country. The patent will give the company the right to prohibit anyone from making, using, and marketing its invention in said country.
When applying for a patent, you must keep your international development in mind as an IP strategy is more than one patent and must go hand in hand with your international business plan. Thus, this IP strategy has to make your business profitable in the long run. For most Canadian companies, the number one market is the U.S., where the IP landscape is similar, but different, from that in Canada.
Below are two of the main methods for applying for IP protection abroad:
Please note, it is highly recommended to contact experts in the field from the very beginning of your project. A patent or trademark agent will assist with searches and licensing to ensure that any IP you develop is adequately secured. Any mistake can cost a considerable amount of time, money, and may also be a source of litigation between different parties involved.
Culture, perception, and understanding of the world are unique in each community, region, province/state, and country, although some views or habits may be similar. Because of this complexity, it is important to understand how your business can leverage diversity as a strength.
The basis of an international marketing/communication plan is simple: who is your audience? Have you determined its demographics? I.e., age, gender, geography; are you targeting businesses or customers? Do you have a good understanding of their needs, tastes, and interests?
A wide variety of tools are available to help you understand trends in a market. You can leverage the flow of data from large search engines, which is proven efficient in narrowing down and defining the audience. Also, you can use the results of market studies and opinion polls of the inhabitants of the country you will be targeting. In the United States, a good source of information is also the US Census bureau tools, while Eurostat is a good source of information for the European Union.
A small amount of work can also yield specific market-related insights, such as, is your brand already known in the market? Are you offering a new brand or innovative service never before seen? It is important to develop your own identity. What is the perception that foreign users have of your image? Does your name have the same meaning in the target market as in your home country? You want to avoid any negative feelings and be as close as possible to the AIDA method: Awareness, Interest, Desire, and Action. For this, we recommend seeking expert support.
It is also important to highlight and consider major trade agreements in regions where Canada is not involved yet. As for example, Canada does not currently have a free trade agreement with any African country. When, in 2018, two-way merchandise trade between Canada and South Africa totaled $1.37 billion, consisting of $410.8 million in exports from Canada, and $962.9 million in imports from South Africa. There are a lot of opportunities on this multilingual and growing continent.
Many countries everywhere in the world are building fiscal and financial resilience and are investing in preparedness as they are working on reducing the large human and economic costs caused by climate change. Whether it is in Africa, in Europe, within the Caribbean any export project must also aim to develop new sources of economic growth and high productivity jobs, which will require investing in people and climate adaptation.
As you are investigating and building a strategy, you want to keep in mind how important milestones are. Measurements are the most important aspects of an international marketing plan. Only through monitoring progress towards your objectives will you know if your decisions are beneficial. You can set a timetable in which goals are set and deadlines are defined in advance. Thus, as the deadlines are met, you will be able to see if you are achieving the goals you set for yourself. If the goals are not being met, they may be unrealistic or other actions may be needed.
It is clear how much the success of an international marketing plan depends on having clear quantitative and qualitative objectives and indicators such as more visits to your website, making the brand known in more countries, and increasing sales, to name a few.
For example, developing an international website will help strengthen the brand image of your company abroad, while attracting new customers. You can simply copy your website in a new language, however, it is recommended to tailor your website to the specifics of your new audience. One of the best strategies to attract new potential customers to your website is to use tailored content allowing you to implement an inbound marketing strategy.
Do some research and learn how to differentiate yourself, highlighting what makes you unique: price, user experience, product quality, etc. There are many ways to differentiate yourself, so you should identify your differentiating factors. To perform this exercise, it is best to undertake a SWOT (strength, weakness, opportunities, and threats) analysis for each market, as it will identify where your company performs in relation to your competitors in the market.
As with any project, issues may arise, such as disputes, and failing vendors or distributors, among others. In such a case, the involved parties may prematurely engage in time- and resource-consuming activities such as litigation. However, there are alternative solutions requiring less time and energy: international arbitration. This practice relies on the will of all parties to sign a contract for a neutral party to render a decision that would benefit everyone. In other words, arbitration is meant to be an alternative dispute resolution (ADR) method consisting of recourse to one or more private entities chosen by the parties to obtain a binding decision. Far from being new and wild, arbitration has become an institution of its own and offers a range of solutions, including ad hoc arbitration, institutional arbitration, and assisted arbitration.
Only the parties and the arbitrators are involved in ad hoc arbitration. It is defined in the clauses of the original contract and if there is a dispute, the parties themselves apply the clause, choose the arbitrator and manage the arbitration process. With institutional arbitration, arbitration has been entrusted by the parties to an arbitration institution and will be held in accordance with the arbitration rules used by the institution. Finally, assisted arbitration is a compromise between ad hoc and institutional arbitration. The parties draft the arbitration clause autonomously (can require help from professionals) and appoint an institution to apply it on their behalf so none of the parties can delay the procedure.
This arbitration institution has no real power or any imperium of any kind; its power comes from an agreement between parties and has no physical place, typical contracts, specific language to be used, or rules of procedures.
Supporters of arbitration usually use the following arguments to introduce this form of alternative dispute resolution:
Speed of the procedure:
Arbitration is typically faster than litigation as the parties can lock arbitration into a time limit, which is not true for litigation (with litigation, a company is a prisoner of its procedural rules and the victim of its congestion).
However, when involving larger interests as when dealing with States, big companies, dangerous areas, …, international arbitrations can occur and be even more complex than traditional litigations due to the accumulation of different international procedures, and the necessity to compile documents in multiple languages, among other factors.
Confidentiality and secrecy:
Confidentiality is usually practiced by all parties and arbitrators as discretion is undoubtedly the most appreciated advantage while doing business, especially at a time when the media report the slightest information about companies and their ongoing business interests. Published arbitral case law is limited, with some exceptions, to decisions whose judicial history has been complicated by an appeal to subsequent litigation (appeal or annulment).
The flexibility of ADR compared to litigation is one of the benefits of this approach procedure. On the one hand, the parties renounce the rigidity of the procedures, and, on the other hand, parties can seek a balanced solution. Professional arbitrators are reluctant to place all blame on the losing party when the losing party is not in total denial.
If you want to know more about Intellectual Property, you can watch the series of videos where our Government Grants Consultant, Antoine Giroir will guide you through the nature and evolution of all the agreements.