What is Intellectual Property (IP)?
IP refers to the concept of protecting creations of the mind, such as inventions, literary and artistic works, designs and symbols, names and images used in business. IP rights are intangible in the sense that they cannot be seen or touched, but their importance to all successful companies, big and small, should not be underestimated.
All businesses have some form of IP which may be protected, allowing the creators or owners to control the use of their creation by others and to benefit from their work or investment.
SMEs are increasingly vulnerable to the threat of IP theft, so it is important for companies to understand how to protect their rights.
The benefits of IP rights include:
- Exclusivity. IP rights typically give the owner the exclusive right to control the use of the creation for a certain period of time, helping SMEs to gain distinctiveness, preserve a market niche and compete more effectively with larger companies
- Increase the value of the business. IP rights contribute to the assets of a business and enable a company to establish and grow its reputation and goodwill in the marketplace. A viable IP portfolio will enhance the value of a company in the eyes of investors and financial institutions.
- Licensing revenues. Companies can also control the use of their IP and generate revenue by licensing IP rights for use by other companies and individuals.
Intellectual Property Rights
There are a number of legal protections available for your intellectual property assets. Here are some of the most commonly used ones. Taking the time to think about which one(s) might be relevant for your business and securing them for your business is key.
- Trade Marks – a trade mark is a sign or symbol used by a business to distinguish its products or services from those of other businesses. A trade mark can be a brand name, a product name, a company logo, the shapes of products or their packaging, colours, sounds, smells, and slogans. A trade mark gives the owner the exclusive right to use the mark in its line of business and makes it easier to take legal action against anyone who uses the trade mark without permission. Trade marks are your property, which you can sell, franchise or licence to others to create additional revenue for your business. Trade mark rights can also be used to secure domain names before they go on public sale and to relieve domain name registrants of their domain names. It is worth considering your company name, domain name and trade marks at the same time to ensure you develop a strong and consistent brand.
- Copyright – copyright protects original artistic, musical, dramatic, and literary works, including computer programs, sound recordings, films, broadcasts, and more. It protects the expression of an idea, not the idea itself, so it does not protect against independent development of the same idea, only against the actual copying of another’s work. Copyright arises automatically on the creation of the work and does not need to be registered. Ownership of copyright in a work will allow the owner to prevent unauthorised use of the work, such as the making of copies or placing the work on the internet. It is a good idea to put the letter ‘c’ in a circle at the end of your work followed by the name of the author/owner and the year. Whilst this does not necessarily mean that the work is protected by copyright, it alerts others that copyright in the work is claimed by the author.
- Patents – patents protect inventions as well as new and inventive technical features of products and processes. They provide the patent holder with a legally protectable monopoly which allows them to prevent others from using or exploiting their invention. To be capable of achieving patent protection, the invention must be capable of industrial application. Often excluded are computer programs, methods of doing business, and methods of medical treatment.
- Design Rights – design rights, whether registered or unregistered, protect novel features that determine the appearance of products or articles (they do not protect functionality, which may be eligible for patent protection), for example, fabric patterns and watch designs. By registering your designs, you can take action against infringing designs made by third parties. Specifically, the design owner can stop the use (which includes the manufacture, provision, trade, sale, supply, rental, import, and export) of a product in which the design is incorporated and which is identical to, or creates the same overall impression as, the protected design.
- Confidential Information – confidential information (often also referred to as ‘trade secrets’ or ‘know-how’) is any information about your business that is not already publicly known and that you don’t want rivals or third parties to know about or obtain, for example, customer or supplier lists, business or marketing plans, processes and organisations within the business, price lists and pricing plans and IP. Although these are not strictly IP rights, it can be possible to protect this sensitive information using confidentiality agreements/NDAs or confidentiality provisions in service agreements.
Who really owns your IP?
It is important that you ensure that you have ownership of the intellectual property rights in everything created for your business.
Seems obvious right? But many businesses find out too late that they don’t have the rights to the work created by their designers, or the logo created by the freelancer they hired, or the software developed by the agency they engaged.
So how do you ensure that this doesn’t happen to you?
One way is to ensure that your service agreements with employees, consultants, influencers, and agencies contain an intellectual property assignment provision providing that any intellectual property rights created are automatically assigned to you. Problem solved. All Strand Sahara service agreements include this crucial intellectual property assignment provision.
Another common blind spot is a failure to check whether anyone else in your line of business is already using a business/brand name that looks or sounds similar to your chosen name before you start trading under it.
A competitor may already have IP rights over the name and can take legal action against you to stop you from using it – not ideal if you have already established your business under that name. Strand Sahara’s Trade Mark Registration support service includes this important check.
If you are unsure about anything written in this article, or to speak to a lawyer, give us a call.
