Marketing as a hotbed of Creativity and Innovation, How Best to Protect?

Creativity and innovation starts with thinking differently. It is a process of questioning, experimenting, learning and adapting. It requires an appetite for risk, a willingness to question, an open mind to look at things without preconception and perhaps most importantly, patience and perseverance. It can take many forms and the process itself involves ambiguity, controversy and non-linearity.

Creativity and innovation within sales & marketing:

Many mistakenly assume that creativity and innovation is the preserve of the R&D function or the manufacturing or production facilities within a company, and may only be found in those parts of the organisation. The sales and marketing functions within a company are often times overlooked.

This is a major mistake as sales and marketing can be a hotbed of creativity and innovation. Let us examine some of the different activities of sales and marketing in order to illustrate this.

  • Competitive analysis
  • Customer understanding
  • Market intelligence
  • Product analysis
  • Sales techniques

Competitive analysis

This is about identifying competitors and evaluating their strategies to determine their strengths and weaknesses relative to those of the company’s own product or service. Competitive intelligence is the action of defining, gathering, analysing, and distributing intelligence about products, customers, competitors, and any aspect of the environment needed to support executives and managers making strategic decisions for an organization.

Competitive intelligence is the gathering of publicly-available information about an enterprise’s competitors and the use of that information to gain a business advantage. The goals of competitive intelligence include discerning potential business risks and opportunities and enabling faster reaction to competitors’ actions and events.

Customer understanding

Customer intelligence is the process of gathering and analysing information regarding customers; their details and their activities, in order to build deeper and more effective customer relationships and improve strategic decision making.

It includes

  • Customer Development Cycle
  • Customer Information
  • Customer Needs & Buying Habits
  • Customer Service Procedures
  • Proprietary Customer Lists
  • Proprietary Information Concerning Customers

Market intelligence

Market intelligence is the information relevant to a company’s markets, gathered and analysed specifically for the purpose of accurate and confident decision-making in determining strategy in areas such as market opportunity, market penetration strategy, and market development.

Such information may include market survey data; marketing and sales promotion plans; marketing plans; marketing techniques; focus group data; internal analysis of current economic factors; and methods for obtaining greater market share.

Product analysis

Product analysis can take different forms but in general it means asking questions about a product and forming answers. It can mean experts analysing a product or members of the general public or potential customers/groups of people. Product analysis can take place at almost any stage of the design process. It may include product life cycle analysis; product pricing formulas and methods; product roadmaps plus more.

Sales techniques

Some describe sales as art rather than a science. That said there are processes, systems and associated data linking to sales. These may include sales calls reports; sales forecasting techniques; sales techniques; strategic alliance information; supply and demand models plus much more.

There are specific practices that sales people can utilise to engage more leads and to close more deals. The art versus science debate has gone on for many years. However there is a definite science, an intellectual, systematic method that can help sales people transform prospects into customers.

Protecting all of this creativity and innovation

Intellectual property is a means to protect different forms of creativity and innovation. It is most important to realize that there are multiple regimes of intellectual property rights, such as patents, trademarks, designs, domain names, copyright and trade-secrets. These are valuable assets for any business, possibly among the most important that it possesses.

But what form of IP is best suited to protected the creativity and innovation highlighted within sales and marketing?

I would argue that trade secrets should be the first form of IP protection considered.

Trade secrets

A trade secret is a formula, practice, process, design, instrument, pattern, commercial method, or compilation of information which is not generally known or reasonably ascertainable by others, and by which a business can obtain an economic advantage over competitors or customers. The scope of trade secrets is virtually unlimited.

A trade secret is therefore any information that is:

  • Not generally known or readily accessible to the relevant business circles or to the public.
  • Confers some sort of economic benefit on its owner. This benefit must derive specifically from the fact that it is not generally known, and not just from the value of the information itself. It must have commercial value because it is a secret. Commercial value encompasses potential as well as actual value.
  • The trade secret must be subject to reasonable steps by its owner to keep it secret. What is reasonable can vary depending on the specific circumstances.

A trade secret continues for as long as the information is maintained as a trade secret. However, information may no longer be considered to be a trade secret once it becomes easily accessible, is no longer properly protected or has no commercial value.

Trade secrets involve no registration costs. Of course, there may be costs associated with the administrative, technical and/or legal barriers the company puts in place to protect its trade secrets. Trade secret protection does not require disclosure or registration, unlike for example a patent which becomes public information. Trade secret protection is not limited in time, unlike for example a patent which only lasts for twenty years. Trade secrets have immediate effect, unlike for example a patent which may take a few years to be granted.

Trade secret asset management

Trade secrets are an important, but an invisible component of a company’s intellectual property portfolio of assets. They can add tremendous business value, so they need to be properly and professionally managed, and looked after. Trade secrets may be found throughout an organization. A significant number of trade secrets will be found within the sales and marketing activities of a company.

Trade secrets should be on the agenda of any in-house intellectual property function as well as on the agenda of any Legal or IP Firm advising organizations. Trade secret legislation has strengthened in key jurisdictions, interestingly at a time when other forms of IP seem to be weakening in some locations.

Trade secrets can be the crown jewels in an organization’s intellectual property portfolio. They possess some clear advantages over other forms of intellectual property. However, trade secrets only work if managed properly and they are well looked after. Proper and professional trade secret management requires a thorough understanding of this particular form of intellectual properly, a fit for purpose trade secret management process underpinned by a robust trade secret management system, plus a good governance process together with regular trade secret audits.

Trade secrets are fragile and therefore require some TLC. The in-house Legal / IP Function and/or the external Legal / IP Firm advisors to an organization should not overlook the creativity and innovation within sales and marketing and give some serious thought to trade secret asset management there.

Donal O’Connell, IPEG consultant, managing director Chawton Innovation Services Limited

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