The essential guide to intellectual property

When you start a business you probably have an idea of what you want your product or brand to look like. You’ll also need to come up with a name, logo, general designs and any marketing ‘collateral’ you might have, such as a website.

This is usually/often/normally a three-step process:

1. New ideas
2. Creating them
3. Protecting them

This is what’s known as your Intellectual Property (IP), and although it’s not usually the first legal issue that comes to mind, it can be extremely valuable and, therefore, worth safeguarding. Without legal protection, there is the risk that someone else can claim your work as their own and profit from it without your consent. Our friends at LawBite have provided some insider knowledge into intellectual property so continue reading if you’re interested to find out more.

What are the main forms of IP

There are many types of IP, the best-known ones include the following:

1. Trademarks - are elements of branding
2. Copyright - protects original expression
3. Design rights - protects the appearance of products
4. Patents - protect inventions

1. Trademarks

On many occasions, there have been companies that have been incorporated and then launched, only to receive a letter of complaint from another business that is already trading under that name (or something very similar) or a trademark that has already been registered.

The common complaints centre around confusing the market, and trademark owners demand that the infringing company cease using the name (and sometimes even reimburse for damages with an infringement claim). For this reason, effective trademarks can be those that bear absolutely no relation to the products or services they’re used for. Completely invented words are ideal.

When naming a business, make sure you follow these steps

• Check it’s not already registered with Companies House, and that it’s actually allowed to be used in the marketplace.
• Check it’s not already registered as a trademark. You can check this by using the Intellectual Property Office (IPO) page 'Search for a Trademark'
• Check if the website address/domain name is available (although not specifically a ‘legal’ consideration, and you can sometimes buy these off the domain’s owner, but that can be costly, and you might not want the hassle).

Do keep in mind that you cannot trademark certain things, so you might not be able to protect your brand entirely.

Logos and other designs

Another part of the ‘branding exercise’ is creating the look and feel of your product. Unless you have fantastic design and branding skills, you might want to hire a freelance graphic designer or an agency to create a logo and any other marketing collateral. If you do hire a designer or an agency, make sure you have a contract in place which specifies exactly who owns the intellectual property rights in whatever they create, as well as stating a deadline for the project and the costs involved.

Again, remember that some images and phrases cannot be trademarked, so check the government’s Intellectual Property website before making any final decisions.

Having a trademark allows you to:

• Take appropriate legal action against people using your brand without your consent.
• Sell and license your brand assets.
• Use the famous ® symbol next to images of your brand, which will act as a deterrent for those wishing to use it without your knowledge or consent.

How much does it cost to register a trademark?

The price for registering a single trademark in one category (‘class’) is currently £170. Each additional ‘class’ costs an extra £50. However, these cost can change, so it’s worth checking the .GOV website so you can budget properly. These are also just the ‘official’ government fees, you might be interested in seeking professional help as the forms are quite complicated to fill out.

2. Copyright

There are key differences between trademarks and copyrights, which are important to understand so you can apply the appropriate protection.

• Copyright protects original artistic, musical, dramatic and literary works, including computer programmes and also broadcasts and recordings.
• Copyright exists automatically when you create something original but you can enhance the protection by registering the work.
• Copyright protects the expression of an idea, not the idea itself; it stops people from “copying” another’s work.
• If your business makes data, you might find it useful to know that the Courts have given copyright protection to certain types of lists of data, such as tables, compilations and databases.

Steps to protect your copyright

You can take several immediate, practical steps to identify and safeguard copyright work:

1. Identify all materials that are likely to have copyright protection.
2. Make sure that the company is the owner of the work. This involves identifying the authors of the relevant work (check if non-employees such as contractors or commissioned artists/authors produced works) and getting copyright assignments and waivers of moral rights from them in favour of the Company.
3. Keep proper records of the results of the steps set out in the first and second bullet points above. Authors should sign and date their works and where relevant to the term of copyright, the date of first marketing of articles should be recorded.
4. Apply a copyright notice following the Universal Copyright Convention, for example, “Copyright © YourCo 2021”. Although this is not necessary as a matter of law to gain protection, it’s a reasonable notice and warning to anyone using the work that copyright exists and that action may be taken if the work is copied.

Good practices to protect your copyright might include:

1. Text stating that reproduction of any material is prohibited. This is useful in preventing someone from arguing that there was an implied licence permitting any copying or storage.
2. Warnings stipulating that the doing of any unauthorised act about the work will result in both civil and criminal liability.
3. Warnings that any copying will result in criminal or civil action.
4. Disclaimer to provide protection for the author and the publisher if use is made of opinions or views expressed in written material.

3. Design rights

Another useful protection that can overlap with copyright is design rights. Design rights protect the appearance of the whole or part of a product. They can be registered or unregistered, and a registered design provides more comprehensive protection.

Design rights protect the texture, contours, shape, materials and decoration of a design. They can apply to a wide range of products, including packaging, graphics, logos and the ‘look and feel’ of products.

Like a trademark, you can apply for a UK Registered Design or an (EU) Community Registered Design. Your design must meet the eligibility criteria. Registered design rights provide a maximum of 25 years of protection, with registrations renewed every five years.

Design registration process

1. Check whether your design is unique to the UK, EU or Worldwide. You can do this yourself or use the support of an IP solicitor, as searching can be demanding, and mistakes can be made.
2. If you’re eligible to register your design(s), specific documentation has to be prepared to submit your design. You can add illustrations to your application and register just part of a design, but this will need to be specified on your application.
3. After your application has been sent, you can expect the Intellectual Property Office to examine your case within approximately two weeks. If there are no objections, your design will be registered.
4. If there are objections or if your registration has been withheld, you can request a hearing to dispute the decision within two months.
5. Please note that you’ll have to renew your design registration every five years to keep it protected.

4. Patents

• Patents provide inventors with a government-granted monopoly over their inventions and last for a limited period (20 years in most countries).
• To receive the protection, the invention must meet the criteria, which includes that it must be new, involve an inventive step and be capable of industrial application.
• You must apply for a patent with the Patent Office of the country that you work in.

Obtaining a patent can be a complex and costly process, but it can also provide inventors with exclusive rights to their inventions for a limited time.

Keep in mind that getting and keeping a patent requires significant financial investment and involves publicly disclosing your technology, which means that competitors may be able to benefit from your insights without contributing anything in return.

How to make a patent application in the UK

You must establish whether your invention is eligible for a patent. To qualify, your invention must be new, involve an inventive step, and be capable of industrial application.

Apply for a patent. Applications for a UK patent must be filed at the Intellectual Property Office (IPO) and provide the following:

• Request granting of a patent using the appropriate forms
• Your contact details
• A description of the invention (the specification) or reference to an earlier application
• The applicable filing fee

Once you have applied, wait for publication and apply for substantive examination. If you're considering applying for a patent, it's important to first determine whether your invention meets the eligibility criteria.

This process can be complex, so it's advisable to seek the assistance of a patent lawyer or professional to guide you through the process.

The content of this article has been provided by Lawbite limited (trading as LawBite) . LawBite offers a digital legal services platform for SMEs. If you require advice on IP, you may want to consider booking a free 15-minute consultation with one of LawBite’s lawyers.

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