Law Donut blog

How to protect your intellectual property

Your ideas are one of your most valuable assets. Whatever the idea, it is your idea and you must protect it. Whether it is a concept, design, sign, symbol, logo or a game-changing invention, it’s something you have created and unless you protect it, you may be forced to watch your intellectual property rights slip through your fingers.  

What is Intellectual Property?

Intellectual property (IP) is an umbrella term used to describe a range of legal rights. Businesses need to ensure they protect what they create, maximise their competitive position and avoid infringing the IP rights of others.

Types of Intellectual Property Rights 

• Registered rights are granted on application by a body such as the Intellectual Property Office. Registered rights are monopoly rights, which means that, once registered, the owner can stop others from using the right without permission. They include patents, trademarks and registered designs.
• Unregistered rights arise automatically, give protection against copying or use, and include copyright and unregistered design rights.

Why do I need to protect my ideas?

Protecting your IP from conception allows you to:

• Own the idea – nobody can use it without your permission.
• Make money from the idea – you can charge others to use something you have created.

There are four types of protection: 

• 1 Patents Last for a limited period (20 years in most countries). To qualify, an invention must be new, involve an inventive step, be capable of industrial application and not specifically excluded. Patents are expensive to obtain and maintain.
• 2 Trademarks A sign or symbol that distinguishes products or services from others. This can be a brand name, company logo, trading style or packaging. It can also cover the shape of a product. Even if unregistered, the goodwill in a trademark can also be protected in an action for ‘passing off’. This requires proof of a reputation in the mark, a misrepresentation that could mislead the public and proof of damage.
• 3 Copyright This protects the expression of an idea, not the idea itself. It does not protect against independent development of the same idea(s), only against the actual copying of another's work. Ownership will allow the owner to prevent unauthorised use of the work.
• 4 Design Rights These protect the appearance of the whole or part of a product. Registered designs provide a legal monopoly and are relatively low-cost.

How do I protect my Intellectual Property?

The Intellectual Property Office (IPO) deals with all applications, for a small fee. Within your application you must prove that the idea, design, logo or invention is worthy of protecting and that no one else has had the same idea. Once the IPO is satisfied what you have is unique, you receive your documents. There are three levels of protection: UK-wide; European Union-wide; and worldwide. This depends on where you intend to do business and is particularly applicable if you are going to sell online. 

What to do if your IP rights have been infringed

Consult a legal advisor, who will advise whether an infringement has taken place. If so, IP law dictates you must follow a set procedure. 

• First, you engage with the other side. If an infringement is established, you must seek a mutually satisfying compromise – whether this is altering a logo or name, changing colour schemes or amending a design.
• If you cannot achieve this, your legal advisor will write instructing the offending party to desist immediately, otherwise proceedings will be commenced.
• If proceedings become necessary, remedies available include injunctions, delivery or destruction of all offending items or damages.

A new small claims track has been introduced to the Patents County Court, which will make it cheaper, quicker and easier, particularly for small and medium sized businesses, to protect IP rights. This will let copyright, trademark and unregistered design holders pursue basic IP disputes at an informal hearing, without legal representation. Claims will be subject to maximum damages of £5,000.

Wax Noor is a senior solicitor at Brilliant Law, which offers fixed price packages for SMEs covering solicitor’s letters, IP consultations and county court claim forms.

• Have a look at the intellectual property section for more information and FAQs.

When customers won't pay up

Chasing payment is part and parcel of running a small business, but when that tiny niggle becomes a major worry you need to know what power you have.

Before entering into any deal for services or products, having a written contract outlining payment procedures is essential. However, no amount of pre-emptive work can safeguard you from the non-paying client or customer.

So what can you do?

Step one

It might sound simple, but you’d be amazed at the power a solicitor’s letter has.

The first action a legal firm will take when instructed by a client on a debt case is to send a letter of claim to the other party — a recovery letter. It sets a specific timeframe for repayment, normally 28 days. And because it comes from a solicitor and not you, it will make the debtor sit up and take notice.

However, if there is no response within the stated time, a legal firm will lodge a claim. For amounts less than £10,000, this would go to the small claims court. Be warned, however, that if you instruct a legal firm at this stage, even if you win you will not get your legal costs back as the court considers the amount involved to be too small. For claims more than £10,000, you do get your legal costs back in the event of you winning the case.

Step two

So you’ve gone to court and the judge agrees that you are owed the money you say you are. Getting this judgment isn’t enough. The difficulty is enforcing it.

If more than £750 is owed, you can bankrupt the individual. However, this is a very serious action with long-standing repercussions for the person made bankrupt.

Another route is attachment of earnings. This would apply where an individual has made use of your company’s products or services and not paid. The court would send details of its judgment to this individual’s employer and every month, money is deducted from the employee’s salary until the debt is repaid.

Step three

There will always be a hardcore who do not pay up. The most common way a solicitor would proceed here is by instructing, on your behalf, a reputable debt management or debt collection firm. However, there is a third way.

An alternative approach is to instruct specialist agents. They can quickly recover the money owed to clients. Once a judgment is issued, these agents visit the premises or home of the defendant and get what is due.

This direct approach can be effective. I heard recently of an instance where agents visited an individual with a judgment against him. They asked him if the car parked outside belonged to him and what its value was. Within half an hour, a direct debit payment had been made to cover the debt. Getting your solicitor to instruct agents like these incurs a negligible fee and if they succeed, their fees are included in the overall amount owed.

Even the most successful small business can be crippled by non-payment, but swift and appropriate legal action, whether that’s a letter or court action followed up by a visit from reputable agents, can take that worry away. You’ve worked hard to build your business. Your solicitor should work just as hard to make sure you get what’s owed to you.

Wax Noor is a senior solicitor at Brilliant Law, which offers fixed price packages for SMEs covering debt management, recovery letters and county court claim forms.