Reduce Risk

Intellectual Property (“IP”)

Intellectual Property needs to be identified, nurtured and protected in order to safeguard your future.


Introduction

For a business, one of its most valuable assets is something quite intangible. IP is the value generated by your creativity. It can include trademarks, copyrights, design rights and patents. Just because you cannot see or touch it, it doesn't mean it has no value. IP can create income for you, help you grow, and add value when you come to sell or exit your business. Intellectual Property needs to be identified, nurtured and protected in order to safeguard your future.

There are two main categories of IP:

  1. Your confidential information – which is valuable but cannot be registered.
  2. IP that you can register. The Intellectual Property Office is the official UK government body responsible for IP rights including: Copyrights, Design Rights, Patents and Trade Marks.

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N.B. These intangible assets need to be protected to the same level irrespective of whether you are involved in just domestic trade or international trade.


Your Confidential Information

Although you cannot protect your company’s confidential information by depositing it in a central registry, this does not mean that you cannot protect it.

The steps you can and should take are as follows:

  1. Establish a confidentiality policy and make this clear and available to all your employees.
  2. As an integral part of this policy, your confidential information may be encrypted and held in a secure place on your intranet.

Often, however, it is necessary to share your confidential information with an actual or potential partner. In this case we would suggest that you consider completing the following consecutive steps, by agreeing:

  1. A Non-Disclosure Agreement (“NDA”). – These can be either “mutual” where both parties share confidentiality – or one way, where just one party shares confidential information. In an NDA you will set out and define the confidential you are sharing and what should happen to it if negotiations collapse – including penalties should a party breach confidentiality.
  2. A Memorandum of Understanding (“MoU”). – Although not usually a full contract, MoUs are useful in defining what you have agreed and where you hope to arrive. MoUs will usually incorporate the terms of the NDA.
  3. A Letter of Intent (“LoI”). – The final step before signing a full commercial contract (usually “tighter” than an MoU). LoIs will also usually incorporate the terms of the NDA.

The more complex and the higher value the negotiations, the more these documentary steps are advisable. (As a minimum, you should always start with an NDA.)

Templates for these documents can be accessed from Simply-Docs.

See: The Intellectual Property Office.

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Copyrights

Copyright is the legal right of a creator of a particular piece of work to prevent other people from reproducing or making use of that work. The law of copyright exist to make sure that if you’re a creator, you can create value from your work by retaining control over its exploitation. Copyright can apply to a wide range of creations, such as:

  • ‘How to’ guides.
  • Articles.
  • Artwork.
  • Audio.
  • Compilations.
  • Databases.
  • Designs.
  • Documents.
  • Films.
  • Games.
  • Methodologies.
  • Photos.
  • Software.
  • Surveys.

You should:

  1. Work out which copyrights you own or could own.
  2. Determine which ones can be registered – and then register them.
  3. Avoid infringing other peoples’ copyright.

See: The Intellectual Property Office.

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Design Rights

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.

Design rights are an underused element of intellectual property rights because many people don't know about them. There are two types of design rights: registered design rights and unregistered design rights. You should:

  • Identify which Designs you own or could own.
  • Work out whether these designs can be ‘Registered’.
  • If you can register them, you should if you have not done so already.
  • Consider commercialising those Design Rights.
  • Make sure that you are not infringing other peoples’ designs.

See: The Intellectual Property Office.

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Patents

A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, selling and importing an invention for a limited period of years, in exchange for publishing an enabling public disclosure of the invention. Typically, however, a patent application must include one or more claims that define the invention. A patent may include many claims, each of which defines a specific property right. These claims must meet relevant patentability requirements, such as novelty, usefulness, and non-obviousness.

See: The Intellectual Property Office.

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Trademarks

A trademark is a mark that a business uses to differentiate its goods or services from those of all other business. It’s a badge of (trade) origin that tells the consumer ‘this is my product’ or ‘these are my services’. When you have a trademark registered, nobody can use that mark in your business sector without your agreement, and so it’s a very valuable way of protecting your brand.

Trademark protection is a complex area of law and seeking trademark legal advice as early as possible in your journey is vital. This not only helps to ensure that you have the right to register your marks but also that you are registering them in the right way and in the appropriate territories.

See: The Intellectual Property Office.

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