Intellectual property: How to protect your business

Wesley O’Brien is a Senior Associate at national law firm Bevan Brittan. He specialises in advising businesses on intellectual property disputes and he spoke to Business Leader about what CEOs need to know about IP.

For many businesses – both start ups and more established businesses – intellectual property (IP) is their most valuable asset. For businesses that may grow rapidly, like tech businesses, it is vital to protect your IP.

There are a number of considerations that come into play when creating innovative new products, services or ideas and it is important that you are aware of these from the outset – both to protect your work and the investment you have made, to commercialise your ideas, and to prevent others from copying them

There are a number of IP rights to consider.

Patents

Patents protect processes and how something works. They are a powerful right that will offer 20 years of protection once registered. However, if you develop a new idea or innovation, you must keep it secret. If you disclose any aspect of it, you risk not being able to obtain a patent. It is important that specialist advice is sought at an early stage.

Copyright

Copyright protects, amongst other things, written words, software and images.

Although copyright arises automatically (in the UK there are no registration requirements), the owner will usually be the person who created the work. This can cause issues, for example, where a contractor (such as a web developer or designer) completes work on your behalf. It is therefore important to ensure that the agreement between you and the contractor includes an assignment (to you) of the copyright in the work.

Confidentiality

The law of confidentiality allows you to protect your technical and commercially sensitive information. It is important to take legal advice, particularly if you want to share your information or ideas with third parties.

Trade marks

Trade marks help protect and promote the goodwill and reputation in your business and your products and services. Goodwill can arise automatically through use of a trading name or mark in a particular location. However, unregistered rights like this do not offer as much protection as a registered trade mark.

A trade mark registration enables you to stop others from using an identical or similar mark for identical or similar goods and services. Once registered, it gives you an initial 10 years’ of protection. These really important rights are essential for all businesses, and you should consider obtaining a trade mark registration for (among other things) brand names, trading names and logos.

Designs

Design rights can protect the way an item looks and can be used to protect both 2D and 3D designs including internal components of machinery for example. Like trade marks, these rights can be unregistered or registered, but design registration offers a much more robust and longer lasting protection.

These are powerful rights which can slow down the competition, whilst preventing others from creating products that look like yours.

Impact of Brexit

Intellectual property rules changed when we left the EU. Generally, businesses that had registered EU rights before 1 January 2021 will have had those rights cloned into UK versions. However, going forward businesses who want to expand in to Europe (or beyond) will need to consider obtaining protection in both the UK and EU. When planning how to protect your IP it is important to think about your long term strategy and any international expansion plans.

Many IP rights overlap and some may be more relevant for your business than others. To ensure your protection is as robust as possible it is important to seek expert advice.

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