WHAT IS Intellectual Property AND WHY PROTECT IT?
A business’ intellectual property (or IP) encompasses all of the intangible assets that the company holds.
Nowadays for most companies, the unique knowledge, experience and expertise that they hold equals or surpasses the value of assets they hold physically.
It is important that where possible, this intellectual property is protected and held within the business. This stops IP:
- being accessed by competitors, or
- "leaking" out of the business through mismanagement or lack of oversight
Businesses can protect their intellectual property either through registered intellectual property rights or by adopting best practices to maintain and protect the value of their key knowledge assets.
Protecting registered intellectual property rights
Registered intellectual property rights include things like trade marks, registered design rights and patents - alongside some others.
These registered rights require submission of special applications at intellectual property offices.
It is advised that in each case you get in touch with a specialist to make sure that the application that is submitted is correctly put together and protects the intellectual property in question in the best way possible.
Please get in touch with our team if you are interested in protecting a brand, invention or design and we will let you know how we can assist you.
How is Unregistered intellectual property protected?
However, companies hold a lot more intangible assets that are not best protected via registered rights.
Or these assets are automatically protected by analogous unregistered rights which are arguably less robust than their registered versions.
Other rights that come into play include:
- Copyright for original creative works, and other forms of creative works (an unregistered and automatic right)
- Unregistered trade mark rights in passing off, which is a much less robust defence than a registered trade mark
- Unregistered design rights, similarly not as robust as a registered design which is relatively cheap to obtain
- Confidential information, non-disclosure and trade secret management
- Licensing and franchising agreements
- Various third-party agreements relating to intellectual property use (supplier, distribution, website, software)
And more…
What follows is a quick description of the principle rights and some of the priorities that businesses need when it comes to protecting their IP.
For a comprehensive understanding and a complete strategy when it comes to the IP within your business, contact our team for an IP audit.
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The first thing you need to do to protect Intellectual Property
First and foremost in protecting intellectual property it is important for a business to be aware of and identify the key intellectual property that exists within the business.
All businesses have important intellectual property, but most do not identify and protect it as a priority.
Instead, They tend to find out how valuable it is later when a competitor either takes advantage or their big ideas and secret sauce become widely known because they didn't protect it.
Again an IP audit is a good way of identifying key IP priorities within a business, please get in touch if you would like us to help you.
To provide a few examples, here are some key IP concerns for three different types of business:
Example 1: The Plumbing company
A local plumbing business, featuring a collective of 8 plumbers all operating under a company name.
Intellectual property that may need protecting includes (but is not limited to):
- Securing the brand name that the company operates under nationwide (making sure the company can grow beyond the local setting)
- Client lists (which could leave with people who leave the business)
- Supplier lists (as above)
- Website and online marketing collateral (making sure that competitors do not piggyback off the material which attracts people online)
- Possibility of solidifying the brand and licensing/franchising it nationwide (making sure that a consistent presentation of the brand occurs at scale)
And much more.
Example 2: The Financial Services Company
A medium-sized financial services company operating out of several major cities across the country, and set to expand internationally within 5 years.
Intellectual property that may need protecting within this business includes (but is not limited to):
- Making sure that the brand name is protected and stands out within a crowded marketplace
- Making sure that the brand is able to be used in the expanding jurisdictions (and avoiding a costly rebranding exercise)
- Client lists
- Prospect lists
- Business plans
- Supplier and third party lists
- Website and online marketing collateral
- Privileged information about clients
And much more.
Example 3: The University Spin Out
A research and development company borne from a research centre in the local university. The company works closely with PhD students on live project work whilst also then hiring them after the fact to continue the research.
IP that the company may need to be wary of includes:
- Protecting their innovations either via patents, confidentiality, NDAs or trade secrets - from competitors and other parties
- Establishing ownership of IP between the University, employees, students and company
- Licensing the critical IP within the business to other industry partners
- Registering a brand which the company's innovations will become synonymous with
- Protecting a range of peripheral IP assets including R+D plans, supplier lists, research history etc.
- Optimizing tax breaks through "patent box" and "R+D Tax credit" schemes
Amongst others.
Crucially, trying to protect any of this after the fact often makes things much more difficult, time-consuming and costly.
So you can see that both businesses have some key priorities that they might not realise until suddenly an issue arises where someone outside the business gets hold of their IP.
In such cases, there may be an opportunity for justice via unregistered rights - but a proactive approach to achieve the best protection is always more beneficial in terms of time and money in the long run.
The different ways of protecting Intellectual Property
As above, intellectual property as a term covers all of the different types of intangible assets that a business can hold. These may be protected by a host of registered rights, or various best practices and contractual arrangements within a business.
For the purpose of this post we will provide some further detail relating to the 4 key principle intellectual property rights, but if you need assistance in protecting the totality of IP within your business do not hesitate to get in touch with our team.
Copyright - Protecting creative works
Copyright is an unregistered right that primarily protects original creative works (as well as other types of creative works).
Copyright comes into existence at the point where a novel creative work is made and protects the original characteristics of the work.
Works subject to copyright include:
- original literary, dramatic, musical and artistic work, including illustration and photography
- original non-literary written work, such as software, web content and databases
- sound and music recordings
- film and television recordings
- broadcasts
- the layout of published editions of written, dramatic and musical works
The length of the right depends on the type of creative work that has been created. In many cases, the right lasts for the entirety of the author's life plus 70 years.
For broadcasts, this is 50 years from the moment of its first broadcast.
For the layout of published editions, this is 25 years from the moment that it is published.
(In the USA alone, in order to enforce copyright, creators are encouraged to register their copyright with the USPTO.)
For more information on copyright specifically, click the link here.
Patents - Protecting inventions
A patent is a registered right that protects an invention for a set period (as long as 20 years), it allows the creator of the invention to protect and take legal action against anyone who tries to copy the invention.
To patent an invention it must not have been made previously known or "disclosed" to the public. Get in touch with our team to find out more about how to develop an invention without disclosing it.
We recommend applying for a patent if you a new product, manufacturing process or just something that you are confident hasn’t been made or developed before.
This is the best opportunity for you as a patent will allow you to keep the invention solely yours for the next 20 years in which you will be able to achieve unrivalled success.
For more information about patents, click the link for our FAQ on those here.
Trade Marks - Protecting brands
A trade mark is a type of registered intellectual property (IP) right that protects a recognizable sign, design, or expression which identifies products or services of a particular source.
It is important to protect the brands associated with your business because it is these that the buying public learns to know you by.
Whether it is a recognisable company name, logo, visual identity, or product/service name - used by others can divert business and profits away from your business and to others.
This not only results in a financial loss for your business - but also reputational loss as "copycats" often produce lower quality goods and services, which the public may assume come from you.
As a business grows, it becomes more well known as do the products and services it provides. Signs that businesses use to identify these products become very valuable because:
- They are how the public recognise products/services you create
- Products and services marked with the signs have more "brand value" and may often be sold at a premium compared to unmarked goods
- You can license or franchise brands to other people, allowing them to use them within certain rules, growing your business and profits
Companies that have not registered a trade mark for a brand name but have developed goodwill in the name may be able to continue to use and protect that name in a limited way through the tort of passing off. Get in touch with our team to learn more about this by clicking one of the buttons on this page.
Click here for more information about trade marks.
Design rights - Protecting designs
A "design" can commonly refer to a plan or drawing produced to show the look and function or workings of a building, garment, or other object before it is made.
The word design can also refer to the resulting designed object in its 3D form.
In the legal sense, a "design" refers to a product in its general shape and ornamentation that is applied to it. As such, "designs" and design rights are more broadly concerned with the appearance of an object, as opposed to how it functions or operates than other registered rights.
Designs are protected by design rights.
Similarly to copyright, there is an automatic, unregistered design right (UDR) which offers a limited degree of protection over an original design at the point it is created.
Unlike copyright, you can also register a design to achieve stronger protection against people copying or appropriating the design. This is called a registered design right (RDR)
There are some differences between unregistered and registered designs.
In addition to this, there are differences in the amount of protection offered by UK UDRs/RDRs and Community Design Rights that protect a design across Europe. For more information on designs click here.
Conclusion: How do I protect Intellectual property? Consult an IP Specialist
You may be thinking you can deal with the situation yourself or instruct any old lawyer, but next thing you know you will have spent thousands on a patent or trade mark, patent or design that actually offers you little to no protection over what is actually important to your business.
An IP specialist can spot problems before they damage your business, and put in place the relevant solutions before the problems arise.
IP specialists are highly familiar with the processes of the IP courts (e.g. IPEC and High Court) as well as those in the IPO (UK IPO, EUIPO, WIPO etc.)
As such, they are far less likely to make mistakes which, when made by non-experts can often cost a lot of time and money. (E.g. a failed trade mark registration may put a business back 1 year. For a failed patent application, this could be incredibly damaging).
In such areas of law, we advise that you seek a specialist.
Should you see our firm as someone that you would like to speak to about a problem you’re facing or an opportunity you want to take advantage of, get in touch by clicking the button below.
About Virtuoso Legal
Virtuoso Legal is a specialist intellectual property law firm established in 2007 by principal and managing director Liz Ward. The specialist firm contains IP experts who cover all areas of IP from registration, to commercialisation and disputes and have achieved remarkable results for clients and in the courts.
DISCLAIMER: The content within this post is for educational and entertainment purposes only. Virtuoso Legal does not take any responsibility for those that use this information and waive any liability for any resulting effect on your personal or commercial circumstances. If you are experiencing an issue and need advice, we strongly encourage you to contact a solicitor to identify your best course of action.
If you are looking for help in identifying and protecting the valuable intellectual property within your business click the button below to get in touch right away. For an introduction on the topic of protecting intellectual property, continue reading this article below.
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