Posted on: 25 May 2016

Intellectual Property (IP) is vital to your business process and knowing how to protect your unique idea, whether it’s an invention or a brand name, can save you a lot of time and money.

For many small businesses, intellectual property protects more than just an idea or concept – it protects genuine business assets that may be essential to your businesses overall viability.

Jackie Maguire is a founding director of Coller IP, a company that specialises in providing support and guidance around Intellectual Property rights.

What is Intellectual Property (IP)?

IP rights are a form of protection for your business’s original creations and your rights as a creator. The basic idea behind IP is to ensure that your product or service is not copied or used without permission and to protect the economic rewards to your business.

A trade name, logo, unique process or even something as simple as a smell or sound can all be forms of IP. They can set your small business apart and enable you to offer customers something distinct.

Why does your business need to protect IP?

In an economy where consumers use online searches to discover businesses and rely on recommendations to make buying choices, developing reputation, brand and identity is increasingly important.

You are likely to have elements of IP within your company that you may have never considered, from your company name to specific products or services that you may sell or produce.

“About 80% of the value of a typical modern day business is in something called its intangible assets and that includes intellectual property” says Jackie Maguire, “So with that figure in mind, it’s very important to make sure that intellectual property rights stay within the business which means protecting them properly.”

A recent report from the Intellectual Property Office shows that UK small and medium businesses using IP rights report as much as 20% higher growth, income and employment than those that don’t [1] so as a small business owner, you should ensure that you understand and actively protect any IP assets within your business.

Jackie explains that failing to do this can mean an inability to protect business investments, a loss of competitive advantage and damage to your underlying business value, “The problem is that intellectual property can be stolen, in the same way as a physical asset can be stolen, you don’t want the value of your business walking out of your door and you don’t want other people riding off the back of your reputation, inventions or ideas.”

“A lot of business owners don’t realise that their IP assets represent such value to their business. They should look to protect their intangible assets just as they would seek to protect a physical asset.”

When should you get IP protection?

As a small business, you should look into protection for your intellectual property as soon as possible.

Jackie Maguire says “Ideally a business should think about intellectual property when setting up, it’s important to consider as a very minimum protection for the name of the business.”

Whilst protecting your own intellectual property, you should also be sure to check that you are not infringing someone else who may have a similar product, logo or brand name.

“The last thing you want to do is to open a business, print all your stationary, get a website up and running and find out that you can’t use the name. It’s always easier to sort it out earlier than later.” adds Jackie Maguire.

What types of Intellectual Property rights are available?

Trademarks

Trademarks are designed to distinguish the goods, services or identity of one company or trader from another and can take many forms including words, slogans, shapes, colours or sounds.

Jackie Maguire comments “Trademarks are really all about protecting your brand and the things that make your brand recognisable. They generally last up to 10 years but if they are renewed every 10 years they can be protected indefinitely.”

Trademarks are split into different goods and services, also known as classes. Each class covers a different area of trade and is designed to ensure that there are not similar trademarks for one area of trade, for example, there aren’t two retail shops selling the same goods with the same logo or name.

There are 45 classes in total that can be viewed here. Other businesses can register similar marks to yours as long as they fall into a different and unconnected class.

Tip: Trademarks cannot be descriptive and must not include common surnames, geographical names, registered company names or anything implying royal patronage.

Case Study: Trademark Infringement
Jack Wills vs House of Fraser

In 2014, well-known British clothing company, Jack Wills took the department store, House of Fraser to High Court over trademark infringement of their logo.

Jack Wills Ltd argued that their trademark protected logo – a pheasant with a top hat and cane which features on the majority of their clothing – had been infringed by House of Fraser, who had featured a similar logo – a pigeon with a top hat and bow tie – on some of their garments.

The High Court ruled that there was a likelihood of confusion between the two logos and that House of Fraser had infringed Jack Wills’ protected trademark.

Patents

A patent can be granted by the government to the creator of an idea or service, giving the creator the right to stop others from making, using or selling the invention without their permission.

Jackie Maguire says, “Patents protect the functionality of an invention, for example, how things work. The invention can relate to an item or a process and could also include things like chemical formulae which affect how things work.”

Jackie adds that there are strict rules and criteria for a patent to be successfully granted, “The patent cannot be granted if the product is already on sale, it would have to be something that hasn’t been seen before.”

When a patent is granted, it becomes an asset that can be sold or licensed out. Patents are typically protected for a maximum of 20 years and cannot be renewed at the end of this period. A UK patent will give you rights within the UK and to stop other from importing the patented product into the UK. There is an international process through which protection can be obtained in other jurisdictions that are important to your business.

Tip: Before submitting a patent application, you must ensure that the invention is kept secret. As soon as the information is freely available in the public domain (for example if you already sell the product/invention), the idea is no longer considered to be new and it will not be possible to obtain a patent.

Case Study: Patent Infringement
Apple Inc v Samsung Electronics Co Ltd

Since 2011, tech giants Apple and Samsung have been in court battling over patent disputes. Both companies have claimed that the other violates patents that they own, with a large focus on mobile devices including Apple’s iPhone line and Samsung’s Galaxy devices.

The patent infringements claims have ranged from the way in which users interact with their mobile software to design concepts.

The court cases spanned over a number of continents until 2014 when both companies agreed to focus solely on USA. In 2015 the courts ruled in favour of Apple, stating that “Samsung’s infringement harmed Apple by causing lost market share and lost downstream sales and by forcing Apple to compete against its own patented invention”

However, the court case will continue this year In the US Supreme Court after Samsung appealed the previous verdict.

Copyright

Copyright is an area of IP law which states that if you have created something, then you own the rights to it. Original works such as drawings, illustrations and copy are automatically protected by copyright and as the creator you are able to decide what happens to it.

“It [copyright] is used to protect original creative works, which means the creator would have to have used an element of skill or judgement to produce it.” says Jackie Maguire

You should be able to prove that the work is original to you or your business in case someone tries to copy or reproduce your work without permission.

The length of time that copyright protection lasts for is dependent on the type of work that you’ve produced. For example, written, dramatic, musical and artistic work is covered by copyright for up to 70 years after the author’s death. There is more information on copyright protection time scales here.

Tip: Although copyright is an automatic right in the UK – it is worthwhile appending your work where possible with your name, the year of creation and the international copyright symbol ©

Case Study: Copyright Infringement
UMG Recordings, Capitol Records and Universal Music Publishing Group v In-flight Productions

In April this year, UMG Recordings, Capitol Records and Universal Music Publishing Group won a court case claiming that IFP (Inflight Productions) infringed copyright on their music and film rights. 

The court case found that IFP hadn’t obtained the necessary copyright licenses when providing inflight entertainment to airlines including American Airlines and United Airlines and they had known that they had been infringing Copyright for a number of years.

The court heard that they had been knowingly infringing copyright for a number of years by buying CDs and DVDs and copying them into their internal hard drives to provide to major airlines.

Designs

Unregistered designs

Unregistered designs – as the name suggests – do not need to be registered with the government but only the shape of the product or the parts that make up the product are protected under this automatic IP right.

Jackie Maguire adds, “Unregistered designs provide natural rights and are particularly useful in the UK, you do not have to have registered the design but your ability to assert your rights comes from the evidence that you provide to prove that someone has taken your work and copied your design.”

This design right lasts for a maximum of 15 years.

Registered Designs

Registered designs not only protect the shape or 3D structure of a design but also protect design elements such as contours, lines, shapes, texture and the material that a product is made from.

In order to successfully register the design it must be of individual character and if requirements are met, the right gives the owner up to 25 years exclusivity of the design.

Case Study: Registered Design Infringement
Magmatic Trunki Suitcase v PMS International Kiddee Suitcase


In March this year, the Magmatic firm that sells childrens ride-on Trunki suitcases lost its long-running battle against PMS International. The makers of the Trunki Suitcase (Magmatic) claimed that Kiddee cases (made by PMS International) infringed their design to make the suitcases look like animals.

The court ruled that Magmatic’s design had not been infringed, as the CAD drawings that they submitted when registering their design only featured the suitcase in different colours and did not feature any particular cover surface decoration replicating animal print/ animal markings

 [1] DLA Piper – Intellectual Property Protection Help Sheet


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