Protecting your intellectual property – what is it and how can it be done?

September 21, 2017

It is a common saying that imitation is the best form of flattery, however, this is not the case where such imitation causes a loss to your business!

What is intellectual property?

Intellectual property (IP) is a creation of the mind, that is a form of intangible property which falls into one of the following groups:
Industrial property – this is the umbrella term for trademarks, patents and industrial designs etc; and
Copyright – a property right which subsists in original works such as literary, artistic or musical.

IP is often considered as a business’ branding, and so many business owners seek to protect it.

How can it be protected?

It is important to note that an idea cannot be protected but it is the expression of that idea which is unique (and potentially valuable) and therefore worth protecting. When looking to protect your IP, your next steps will be dependent on exactly what it is you are trying to protect.

A patent can be granted for an invention and provides protection to the patent owner to decide how the patented invention is used. A common example of this can be seen in pharmaceutical companies who patent chemical inventions. Patents are generally granted for a term of 20 years.
Trademarks allow for the registration of a mark (such as words, letters, drawings and symbols) and provide an exclusive right to the mark owner to use them. When a trademark is registered they are usually done so for a term of 10 years, on the expiration of which the trademark may be renewed.

Registerable Design – protect the owner from unauthorised copying or imitation of a design.

Unregistered Design – this allows automatic protection, such as copyright.

Why should you protect your intellectual property?

As a business owner, it is important to protect your IP rights as they usually carry value as a business’ brand and allows consumers to distinguish between businesses. It promotes economic development by encouraging competitive markets to be more creative.

It is possible to pursue an action in relation to an unregistered mark. If you find that someone is using a mark which may be confused with a mark used by your business, all hope is not lost. An action under the tort of passing off may be pursued.

Even where IP rights have been protected, this does not mean they cannot be exploited commercially. For example, copyright and trademarks can be exploited legally in the following ways:
licencing – permits another business to use the IP, often for a defined period of time, territory or for a particular product; and
assigned – transfers the rights in IP to another owner. At this point the original owner no longer has the right to the IP.

Post Brexit effects?

The full effect of Brexit on domestic legislation is yet to be seen. The issue being posed to many businesses with protected IP throughout the EU is how that IP will continue to be protected outside the UK once we have left the EU.  It is therefore important for business to identify prior to us leaving the EU what IP rights they may wish to protect. It will then be fundamental to see whether any further registration is required in order to achieve optimum protection.

At current, the European Commission have provided their position on intellectual property post brexit. This includes an automatic division in the UK for unitary EU rights, which practically speaking would see a huge increase in registered trademarks within the UK.

This article provides a brief overview of the matters discussed and is not to be relied upon. Further legal advice should always be sought when looking to protect your intellectual property rights. Should you wish to speak to an advisor, please contact the Advisory and Dispute Resolution team at EHL Commercial.

The information provided in all of our blogs reflects only a narrative of some elements to consider on the topic. The blogs do not contain considered legal advice and should not be relied upon as advice. Please see our website terms and conditions for full details of our disclaimer. If you are interested in obtaining advice, please contact one of our lawyers who will be happy and able to advise you on your own particular circumstances.

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