You may know that intellectual property (IP) rights are there to protect the innovative parts of the business, in other words, the reason(s) customers will come to you rather than your competitors. Whether it’s a brand that you have built up (or plan to build up), an innovative design, or a technical invention, IP rights are available to stop others from doing the same, but only if you take action at the right time. Some IP rights need to be formally registered, others arise automatically and don’t need registration, but all of them need to be carefully considered to properly protect your USP(s). Timing can be everything, and the last thing you want is to find out at the point that a competitor has muscled in on your market share, that you could have stopped them if you had acted in time to protect your IP. In our latest blog, we consider various IP rights and what you need to do to protect them, so you don’t run out of time to protect your IP.
Registered IP
Patents
If your business is based around one or more technically new products or processes, even if they are ‘just’ improvements over what is already known, then patents may be the appropriate way to protect them. You must file at least an initial UK patent application for an invention before there is any non-confidential disclosure of it. Any non confidential disclosure would invalidate a subsequent patent application. So, the message here is: use NDAs for discussions with, for example, potential investors, potential licensees, potential collaborators, consultants and even (trusted) manufacturers, but before there is any wider disclosure (for example, a crowdfunding campaign, marketing or even sales or offers for sale), if you want patent protection, you must file a UK patent application beforehand.
Registered Designs
Registered designs protect the outward appearance of something (rather than any underlying technical concept). In the UK, EU and US, there is a 12-month ‘grace period’ within which you can validly file an application for design registration. This means that, if your product (or GUI in the case of an app or online platform) has already been publicly disclosed, you have 12 months from the date it was first disclosed to the public to file applications for design registration in those countries/territories. However, many countries (for example, China) do not have this 12-grace period. This means that, once your design has been made available to the public in some way, it is too late to validly file applications for registration in many other countries/territories. For that reason, we often strongly recommend filing a UK application for design registration before there is any non-confidential disclosure of your design. Once the UK application has been filed, you can launch your product, and any corresponding overseas applications can be filed within 6 months of filing the UK application.
Trade Marks
Many businesses are (or become) widely recognisable through their brand names, logos, slogans and straplines. If you want to be able to stop a competitor from using the same or similar brand elements as yours, then trade mark registration should be considered. Unlike patents and registered designs, you can file an application for registration of a trade mark after you have started using it commercially (and, under certain specific circumstances, it can help). However, whilst a brand element remains unregistered you cannot stop third parties from using them (or similar), or even registering something similar themselves. So, the message here is that, while it is not essential from a legal perspective to file application(s) for registration of things like your business/product name(s), logo(s), etc. before you start using them, it is highly advisable to consider doing so. In any event, we strongly advise that you at least have searches performed before you start using a trade mark, just to make sure you won’t be infringing someone else’s trade mark rights.
Unregistered IP
Copyright and Unregistered Design Rights
Copyright and design rights arose automatically when something original is created. Copyright protects “artistic works” which, traditionally, might mean books, paintings, music and films, but in a business setting, copyright is more likely to arise in things like websites, photographs, videos, blogs and articles, training resources, instruction books and even software code. Unregistered design rights arise in the features of shape and configuration of a new product or device. Both types of IP right allow you to take action against a third party that has copied your original “artistic work” or design. You don’t have to do anything to have these rights, but it is important to understand a few things. Firstly, if a third party (e.g. a consultant) creates any of these types of things for you, always make sure that there is an agreement in place between you that stipulates that any IP rights created by the third party on your behalf will be owned by you or the business. Secondly, in relation to things that attract copyright, wherever possible, make sure your copyright is flagged to third parties using © [the company name][the year in which the copyright was created].
Trade Secrets
Sometimes, you may decide that you have something valuable that you can realistically keep a secret from the wider world, even after a product has been launched. Classic examples of this being an effective way to protect a core part of a business are he KFC and Coca Cola recipes. In recent times, it is more likely to be a novel algorithm underlying an app or online platform. Irrespective of the nature of the business element in question, it can only be protected by the Trade Secrets Directive if your product cannot possibly be reverse engineered to find it. If that is the case, it is important to a) be very clear about exactly what the trade secret is, and b) put policies and processes in place within the business to safeguard it. Usually, this would involve things like enhanced cyber security, and a policy whereby access to the trade secret is limited, even within the business, and such access permitted only on a ‘need to know’ basis and under certain conditions.
Need Help?
Don’t run out of time to protect your IP. Contact us if you have any questions about this blog, or intellectual property more generally. Strachan IP is a full service IP firm, with many years’ experience helping innovative SMEs to identify, capture, preserve and protect the valuable IP they create. Feel free to book a free initial consultation by emailing vicki.strachan@strachanip.co.uk, or visit our website at https://strachanip.co.uk/contact/, or use our Calendly link: https://calendly.com/strachan-ip-a-fresh-view-of-intellectual-property/30min. Or you can give us a call on +44(0) 1432 652464 or +44 (0) 7714 797135
