Intellectual Property

"What is worth copying is worth protecting," so spoke the judge in a copyright dispute in 1916, and his words are just as valid today. It is a plain fact of modern business life that if your intellectual property gets you market share, then your competitors are going to want to copy it.
Be it a patentable invention, a new brand identity, a new design or a copyright work (words, pictures, film, music, software), then obtaining and enforcing intellectual property rights is often the only way to ensure that your creativity is not exploited by someone else.

Patents

When it comes to novel products and processes, patent protection is what is required. You do not have to apply for a patent to protect your product or processes, you could rely on keeping the information confidential. But without a patent you would lack the right to stop others from making, selling or importing the product or process you have developed.
Patents cover such diverse subjects as agriculture, medicines, games, paints, electronics, and photography: anything in fact from a small detail in an electric switch, to a new form of transport like the first hovercraft.
Patents are territorial, therefore a UK patent will only offer protection within these shores. At present there is no such thing as a ‘world patent’ so to get protection abroad there are currently three choices.
The first is to make separate national applications in each of the countries where you want protection. An alternative to this is the European Patent Convention, whereby protection can be obtained in one or more European countries by a single application to the European Patent Office. Finally the Patent Cooperation Treaty (which includes most of the major industrialised countries), is an option that simplifies filing procedures if protection is required in more that one of the Member States.

Designs

While patents protect the kernel of a new apparatus, product or process, the outward shape or configuration of products of all kinds is protectable by either a registered design or design right. A registered design requires application to the Patent Office whereas (unregistered) design right has automatic protection without the need for registration. The former registered right will offer stronger protection than the weaker automatic right. The appearance of this outward aspect may be crucial for the market success or failure of the product, whatever its other attributes. So a new mechanism in a camera will be patentable, but the ‘look’ of the casing that encloses the mechanism will be protectable by a registered design or the design right. The design can be of the product itself (or part of the product) or its pattern.
At present designs must be registered in each country where protection is sought. However, later this year the Community Design will be introduced and this will offer a single registered right which will give protection across all of the EC member states.

Trademarks

Trademarks are signs which distinguish the goods and services of one trader from those of others. Thus, while the formulation of, say, a washing powder sold under a particular registered trademark may change many times over the years, a trademark ensures that only the company, or its licensees, may sell a washing powder under that sign. Trademarks therefore provide protection for the goodwill and reputation of a firm in its products and services.
Trademarks, often the single most valuable marketing tool a company will have (whatever its size), do not need to be registered. Providing that sufficient trading reputation and goodwill has been built up in a mark, a degree of protection is afforded by common law. However, in order to succeed in an action based on an unregistered mark, it is necessary to show both that one has established a reputation in the mark and that the use complained of would be liable to confuse or deceive the public. Registration of the mark on the other hand gives an immediate right to stop someone using the same or similar mark on the same or similar goods and services, without the need to prove reputation or demonstrate confusion. The owner of a trademark would therefore always be well advised to register the trade mark where this is possible.

There are three routes to secure protection overseas. The first is to file a series of individual trademark applications in each country. Second is an application to the Office for Harmonisation in the Internal Market (OHIM), for a European Community trademark registration, to secure trade mark protection in all EU countries. Alternatively, an application can be made to the World Intellectual Property Organisation (WIPO) in Geneva, in order to obtain trademark registration in a number of countries across the world.

Copyright

Copyright gives rights to the creators of original literary, dramatic, musical and artistic works, published editions of works, sound recordings, films (including videos), broadcasts and cable programmes, and computer programmes. These rights enable the creators to control exploitation and cover copying, adapting, publishing, performing and broadcasting. There is no registration system for copyright in this country; it comes into operation automatically. While this has the advantage that formalities are avoided, the owner must remember from the outset that he bears the legal responsibility for proving that the right is his. Also it must not be forgotten that limited kinds of copying may be carried out without the permission of the copyright owner.
Generally the owner of copyright is the first creator or author or their employer if produced in the ordinary course of their employment. But beware when using a contractor! A contractor will retain copyright ownership in the work unless their contract is to the contrary.

IP: a vital source of information

A very common error is to become so single-minded about your own invention that you neglect to find out at the earliest possible moment what has been done before. It is intensely annoying (as well as expensive) to become aware after months of effort and investment that the protection sought is not allowable because the projected innovation has in fact been done before. A scan of the published literature to establish what is already known can save you a lot of time and money. The European Commission has estimated that European industries are wasting over £20 billion each year by simply repeating previous efforts, the results of which can be found in published patents. If you don’t look at patents you could be cutting yourself off from at least four-fifths of the information that is available to you.
It is also worth checking the name of your company or product before use. It can be a severe psychological and financial blow to create a "new" brand and then start using this brand on a range of products, stationery, shop signs, etc., only to find that you are infringing an existing registered trade mark. If someone else has obtained a registered trade mark for the same, or similar, goods or services, in the same class of registration, you could find yourself having to re-brand your goods, or re name the company. Worse still you could find yourself the defendant in a trade mark infringement action.

Is this only relevant for big businesses?

Intellectual Property is not the exclusive domain of large corporations. Smaller businesses, if well informed, can gain a great deal. A manufacturer based in the UK was looking to improve their products and began research. They identified the technology they were looking for in existing patents and secured an exclusive five-year European licence for the technology. They now have what they believe will be a privileged position in the UK for the foreseeable future.
Conversely, failure to recognise IP can prove costly. The owner of a small restaurant in London estimated that she lost a quarter of her business when someone else opened a restaurant nearby and used her non-registered trade mark.