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Guide to Intellectual Property (IP) and your business

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Richard Stannard from Business Link West Midlands, the government’s service providing practical guidance for small and medium-sized enterprises, explains how to protect your intellectual property for your business.

Intellectual property (IP) is something often talked about but difficult to define. Many owner-managers can place a value on their business dependent on turnover but IP is the value of the business that you sometimes can’t physically touch, for example, the name, trademarks and copyright.

Many of these things are vital to the success of the business. Imagine, for example, losing the right to use your name to someone else because it has not been protected. The cost implications of this could be tremendous. Protecting your IP is a legal area and so it is vital that you understand your rights and how the law can help. IP is all about paperwork.

IP rights can become valuable assets for your business. They not only distinguish your business from your competitors, but they are a crucial part of your branding and can be sold or licensed. To fully exploit your IP, you should put in the time to assess what you have. Once you’ve done that, you can do the following:

• Prevent others from using or selling it without your permission
• Licence any novel technology, technical features, or design
• Protect it from someone else breaching it and protect your sole rights

The first steps to protecting your IP is by carrying out a thorough audit of what you have. To do this, look closely at your business and consider:

• Where the IP is used
• Who owns the IP rights
• The value of the IP

While this might seem a simple exercise, except for placing a value on your IP, which is not easy, it can prove tricky, as your IP is not only the trademarks you have registered or patents you’ve filed, but also any domain names, customer databases and written material you have. From conducting the IP audit, key areas you should look to address are: whether or not your IP is protected; if you are breaching another firm’s intellectual property and if you are entirely utilising your IP.

Legal matters

The law can provide protection for your IP and there are four main ways in which it does so:

Trade Marks

Your trademark is your brand identity and it protects any symbol or icon you have that differentiates you from your competitors. You can register any logo, name, colour or even sound. In order to register your trademark, it must first comply with certain regulations. It must be unique to the industry you operate in, and cannot be the same or similar in any way to a previous mark for the same or similar goods and services. Additionally, it cannot be deceptive or against the law.

If your trademark satisfies these regulations then it should be suitable to be registered. Once registered, you must renew it every ten years. Failing to register your trademark could result in someone else using it without your permission.

Copyright

Copyright enables you to protect any creative or artistic work and is there for you to gain financial reward from the creation of new material by giving you monopoly rights. It can protect anything from literature, drama, music, art, recordings and broadcasts and attaches automatically to the individual(s) doing the novel creation, unless there are employment contracts, which mitigate against this.

It is important to remember that copyright can be applied to any of the above mediums; therefore you are not required to replicate copyright that is protected in another medium. If you want to use copyrighted work, remember to first seek the copyright owner’s permission. An advantage of owning the copyright is that you have control over your material allowing you to make copies, use it on-line, and for broadcasting means.

Remember that copyright does not extend to names or ideas and you do not need to ‘register’ copyright; beware of organisations asking for money in return for ‘registering copyright’.

Patents

A patent protects new inventions and gives you the right to stop someone from using or selling your invention without your permission. A patent will protect the following things:

• How things work
• What they do
• How they do it
• What they are made of
• How they are made

While the inventor holds these rights, they must make the invention public. In order to qualify for a patent, your invention must follow specific conditions including: the product must be new; it must be innovative and it must provide a description of the invention to allow it to be made. A patent can be applied for at the UK Intellectual Property Office.

Not every novel function should be patented, however. A patent should carry a government health warning; ‘’it can seriously damage your wealth.’’ It’s always a good idea to first run the idea past a business link advisor in confidence to look at the opportunity from a business perspective. Lawyers will not do this. It might not make business sense to take out a patent on a product that is only going to last a few years, and a business adviser will be able to highlight this, whereas a lawyer will not.

Design

A design protects the outward novel appearance of your product, which includes colours, textures, form and overall aesthetics. In the UK there are three legal rights that can protect designs, these are:

• Registered designs; stops anyone copying or using your design in the UK for 25 years
• Design right; this is an automatic right you receive when an original design is created. This ensures that no-one can copy your design for 15 years
• Artistic copyright; if you have an artistic design but you will not be producing it, you automatically receive copyright protection. This also extends to drawings or plans of your design

Legal issues

IP protection can be a highly complicated process, but if done correctly it can contribute to the success of your business. The best way to progress is to seek legal help.

There are useful sources of IP law such as the Trade Association Forum and the UK Intellectual Property Office. There is also specialist legal advice available such as patent agents who have expertise in all aspects of patents, trademarks, design and copyright law. Additionally, there are trademark attorneys who are qualified in trademark, design and copyright issues.

Intellectual Property Infringement

It is important that you do not breach another firm’s IP because this can result in legal action being taken against you. In order to avoid this, conduct searches to check you’re not committing IP infringement. For example, before designing a logo or sign for your business, perform a full trademark search.

Additionally, you could ask the UKIPO search and advisory service to conduct a search on your behalf and determine that your trademark meets the conditions needed. It is also worth checking with Companies House to make sure no other company is using your future trademark as the name for their company.

Similarly, you should carry out a full design search if you intend to sell, make or use goods. If you intend to use original creative work then it is vital you find out if it is covered by copyright. If you do breach someone else’s rights then the result could prove costly and time consuming, so it is important to take the necessary precautions at the beginning to ensure your business’s success.

At a glance – Top tips to protect Your IP

Find your IP
Remember that anything that sets your business apart can be protected, including your name, logo, inventions, designs, creative or artistic works.

Conduct an audit
Conducting an IP audit is essential in order to capitalise on your business. This needs a little time, but if you are thorough you will be able to make sure you are protecting all of your IP and not infringing anyone else’s.

Get legal protection
The four most common ways the law provides protection for your IP is through trademarks, copyright, patents and designs. These, except copyright, need to be applied for and follow strict guidelines, so you should seek guidance to make sure your IP complies with the regulations.

Prevent infringement
You could lose your IP rights if someone else picks up your idea before you’ve had it protected. It is essential that all your business’ material including IP rights be kept safely and securely so you do not lose your claim to originality. To avoid IP infringement, ask your employees and anyone else you disclose information to, to sign a confidentiality agreement. Also, keep a hard copy of information locked up.

Respect others
It is important that you don’t accidentally breach someone else’s IP. If you do this, legal action could be taken out on you as well as orders to pay damages. To avoid this, carry out searches to ensure you are not breaching someone else’s IP. In some cases you can get professional help with this from either a patent agent or trademark attorney.

To find out more about what Business Link offers visit www.businesslink.gov.uk or call 0845 600 9 600 to find your nearest Business Link.

Posted June 27, 2007