This March, UK supermarkets Waitrose and Asda became embroiled in the latest IP dispute, with Waitrose sending a legal letter to Asda after it released a discount product range that looked – well, suspiciously similar to Waitrose’s according to the supermarket. Two days prior, Asda had introduced its ‘Just Essentials’ range, a budget line which claims to offer “the largest value range in the market”. However, all the excitement was swiftly quashed by Waitrose’s claim that the brand was too similar to its own ‘Essential Waitrose’ range, which launched back in 2009. We’re still waiting for a response from Asda – but Waitrose has made it crystal clear that it could go to court if the issue fails to be addressed.
It is worrying that a word as commonplace as ‘essential’ has caused this blight, as it demonstrates how tricky it can be to know what the intellectual property parameters actually are, and what is and isn’t considered IP infringement. It can, in particular, be concerning for owners of smaller businesses who simply cannot afford to get into IP disputes with other companies. So, how to avoid them?
Make sure your licence is right (or go royalty-free)
If you are using registered material, you must make sure you’ve obtained the correct licencing to do so, as well as written consent from its owners. Otherwise, you could be in a sticky situation. If you don’t want to create your own images and music, or you don’t want to pay someone to do it for you, there is always the option of using royalty-free media. These are free for commercial use and require no attribution, so it’s pretty plain-sailing. There are loads of sites where you can download free-of-charge music and images. Not bad! The only issue is, your choice is often limited, and free stock artwork is renowned by many – fairly or unfairly – for being generic, which it’s worth considering if you’re looking to stand out amongst your competitors.
Be original
On that note, ever wondered why the music at your favourite clothing store is so mediocre? It’s likely because they don’t have the licencing to play the tunes you like. Whoever holds the copyright over a song controls the right to play it publicly – in which case, if you want to play it in your store, you’ll need to gain their permission and likely pay a fee. In order to overcome this, businesses can create their own pictures, logos and music. You can do this yourself or you can hire someone else to do it – if the latter, though, make sure to include a contract which specifically states that the content they create belongs to the business – not to them. Otherwise, your freelancer could use the content elsewhere, or sell it to another SME, meaning they now legally own the content and technically could sue you for IP claims (even though you used it first!) And, if you’re making your own content, it gives you more of a chance of standing out.
Beware of the nuances
Waitrose is not the first company to legally claim a generic word. Years ago, easyJet’s parent company EasyGroup was suing pretty much everyone – including an estate agency (easyRealEstate.com), an equity brokerage (Easybroker) and an online art vendor (Easyart.com). But why? Because, as companies diversify and start doing things that aren’t in their core business offering, they don’t want people to associate them with something that isn’t theirs. The Waitrose argument is that people will mistake the ‘Just Essentials’ range for ‘Waitrose Essentials’, or assume they’re the same thing. It could confuse the market – especially as more of us shop online, people who previously only shopped at Waitrose could be encouraged to switch to Asda if it pops up in their search engine results. To make matters even more confusing, Asda and Waitrose both use a lot of green in their product packaging. So, although ‘essentials’ is an ordinary word, there could be just too many other similarities for it to fly. Note that, meanwhile the popular jewellery shop, Essentials, hasn’t got into any trouble with Waitrose – because there’s no way they’re going to be mixed up.
Make sure your own IP is protected
Your IP should be legally protected, to prevent it from being used without your permission by others. We’ve seen it happen time and again in the music industry, for example, where popstars have ‘subconsciously plagiarised’ music from other, much smaller musicians – often without repercussion. So, make sure you know what constitutes IP – the government website sets it out clearly: the names of your products or brands; your inventions; the design or look of your products; things you write, make or produce – and that your rights over it are protected through means such as copyright, patents, and trademarks. This will mean you have all ownership and authority over how your work is distributed and utilised; plus, it could increase the likelihood of business growth – a benefit reported by SMEs which have applied for IP.
Conclusion
IP rights can be confusing, but you must make sure you’re not violating them by using protected content illegitimately. To prevent yourself from becoming an unintentional IP thief, make sure all creative work you’re using is either your own, or something you’ve got the correct licencing to use – and to protect your own IP, seek legal advice – it’s essential (if we’re still allowed to use that word).
