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.