Did you know that when you start out in business everything from your software, logo, concepts, ideas and business assets can be protected?
You would be surprised as to how many companies are not aware, and are then stung when someone else steals their ‘intellectual property.’
Safeguarding your business doesn’t necessarily come cheap, but in the long run it certainly pays for itself. Indeed, the longer-term viability of a company could rest on how robust their intellectual property is.
The advent of the internet has opened up a whole new world of possibilities for businesses, though equally that means intellectual property theft is on the rise.
It’s therefore incredibly important that companies have the right amount of protection in place to safeguard their IP.
Keeping hold of your ideas
It stands to reason that people will want to replicate any good ideas/products a company may have, given half the chance.
The different areas of IP, such as copyrights, patents of trademarks are all effective at keeping a company’s ideas as their own, and effectively stopping anyone else from copying them.
Individual circumstances will dictate the best route to go down in this regard.
Protecting the growth of your business
One of the first things that you should bear in mind, particularly if you are a new or small business, is that the onus is on you to keep abreast of whether your intellectual property has been infringed.
No one else is going to do this for you – unless you pay them of course – and having no legal protection in place at the outset could mean a huge loss of market share.
Always have in mind that if you believe any of your businesses ideas, products or services are likely to prove profitable in the wrong hands, lock them down from the beginning.
It could be the difference between revenue loss and slow growth, potentially devastating for a new organisation.
Easier than you think
Protecting your company’s IP is easier than you think, even if the initial process may appear to be overwhelming.
Once again, whilst cost could be an issue for some businesses, it will be nothing compared to trying to retrospectively go down the legal route.
The initial effort will save time and money in the long term.
Think of it in terms of a house without a burglar alarm. You’d install the alarm before you were burgled, as a deterrent, not after the burglary has been committed.
Another company trying to pass off your ideas or products as their own is theft. Plain and simple.
Though the idea itself can’t be protected, the means of ensuring the idea worked is what can be covered by Intellectual Property.
Company websites, brochures and/or other literature can be protected by copyright, albeit protection is automatic and free.
The UK Intellectual Property Office handles all trade marks, patents and registered designs, and can be done by oneself or with the use of a patent solicitor.
Always have in mind, with any of the instances above, that you and your company will have gone to great lengths to build up a reputation. The last thing you’d want is for another person or business to take advantage of that in some way.
Main types of IP protection
In the United Kingdom, it takes approximately six months to obtain a registered trademark, which then gives its owner (individual or company) full legal rights in the field it is registered.
If the trademark is applied for in the UK (via the UK Trademark Registry), costs are typically £600-£700, whilst an EU trademark will come in at somewhere approaching £1,200. International trademark costs fluctuate depending on the country where the trademark is applied for, and this is done through the World Intellectual Property Organisation (WIPO).
It’s imperative that when applying for the trademark (there are 42 in total in the UKf), the goods and services that are to be covered are specified.
In the United Kingdom, this arises automatically in original works, and applies to the author (or their employer), lasting 70 years after the death of the author.
It’s important to know that there is nothing that needs doing in order to attain this right, albeit if you commission a design, terms of the contract terms have to acknowledge your ownership.
Ownership of copyright does depend on the facts surrounding the commission, and don’t automatically think you own a copyright.
A Non-disclosure Agreement (NDA) is a pre-requisite, with IP solicitors able to draw one up in advance of negotiations.
The patent will be a contract between the inventor and the state, with the inventor given a 20-year monopoly applied to technological creations.
Filing can be done in the UK, Europe and (through WIPO for international registrations) via the Patent Co-operation Treaty.
Intellectual Property Design
Registered or unregistered designs can have an extension of copyright for an individual’s new work. The Designs Registry is the place to register in the UK, the Office of Harmonisation of the Internal Market (OHIM) in Europe.
Protection in Europe lasts three years, in the UK you’re covered for 10 (from the year of). It’s possible to get up to 25 years protection, as long as this is renewed every five years.
Trade secrets of confidential information is protected and those who misuse this can be sued, albeit you need to demonstrate confidentiality through the procedure. Ensure, as a start point, that any company documents are headed ‘confidential’.
Domain names –
Nominet ensure successful applications last for two years, and its dispute resolution policy is in place to deter companies registering a similar URL or cyber squatters. An option that is relatively cheap, it can ensure that court action isn’t required.
Best way to protect business IP
You should look to seek the advice of a patent or trademark agent, or alternatively use The Patent Office site – www.patent.gov.org.
The former will ensure that applications are processed quickly and securely.
Assess any risk to see if there’s already something out there that’s similar to your IP proposal.
This will included detailed searches at Companies House, the UK Trademark Registry, trade magazines and even a deep dive on the internet.
An unregistered trademark search is nigh on impossible, whilst £50,000 is a ballpark figure for legal seatches in key jurisdictions such as Europe or the US.
How to defend your intellectual property
In order to prove that you own the rights for a particular piece of IP, action against the perceived infringement must be taken.
Advertising spend, brand awareness and evidence of goodwill will all be taken into account and there is a need for the company to be able to show that it had the ‘earlier right’ to use the IP.
Courts almost always expect appropriate action to be taken sooner rather than later once a company is aware that an infringement of its IP has taken place, albeit there is a six-year window from the time the infringement is noticed in which to take the case to court.
If the infringement is causing considerable damage to your company’s reputation or ability to conduct its normal day-to-day business, then requesting an interim injunction within three months is the most appropriate course of action.
Albeit, when so doing, an agreement for a cross-undertaking in damages should be in place. Essentially, this covers the other party so that, should you lose, there is a commitment to pay the other side’s losses.
How much does it cost?
Although some companies will baulk at the cost of protecting their IP, which can often run into thousands, or hundreds of thousands if it’s a particularly complex case, the alternative is far more unpalatable.
With cases often taking six to nine months to resolve, sometimes longer, legal costs can skyrocket. No IP protection in place makes the legal fight even longer and more expensive.
However, protecting your assets at the outset, and being able to prove the same in court, will often result in the winning of up to 70% of legal costs, damages and interest, as well as an injunction against the other party.
It’s worth considering insurance if there’s a particularly big dispute in play, and this would be in the form of either ‘before event’ or ‘after event.’ .
Alternatively, mediation is often suggested by the courts. A cost of up to £50,000 and another £20,000 in legal fees isn’t unheard of, but will again be small change if a resolution can be found.
WGP Global’s Top IP Protection Tips
Tip #1 – Make sure you get legal title
– Absolutely essential to be able to enforce later, in a situation where work has been commissioned.
Tip #2 – Carry out searches
This should be done before a brand name has been adopted
Tip #3 – Review any licensing arrangements
Tip #4 – Keep original design documents
– Don’t neglect this area of the business as by dating documents, you have evidence of them – essential for potential litigation. Ensure one person in the company is responsible.
Tip #5 – File a patent or register a trademark
– Make sure that an NDA is signed by a licensing agent if you intend to go to market
Tip #6 – Use a trademark agent
Yes, but a trademark agent can cut through the noise and get straight to whether the business has something distinctive and registerable.
Tip #7 – Review your IP
– Could it need updating?
Almost certainly if, for example a logo is redesigned or there is a move into a new market.
Be acutely aware of the existing protection in place and whether it would still cover the business.
Tip #8 – Review procedures
– Recording, safe keeping, rights filing, confidentiality… keep them updated regularly.
Tip #9 – Monitor the market
– It’s always worthwhile keeping your eyes peeled and your ears open for potential infringements.
Tip #10 – Set aside a budget
– You’ll need this when your rights need enforcing. Don’t leave this until you need it, keep topping up the pot.
Tip #11 – Enforce as soon as possible
– Always get legal advice quickly to put the company in the best possible position.
Tip #12 – Build up a strong case
– Do this before you intend to sue, leaving no wriggle room for the other side.