IP: How to protect your most valuable asset

Whether competing against other larger or more established brands or protecting your business from infringement, IP is a complex and sophisticated area of law that requires a lot of attention and expertise. Yet it is often the area of the business most overlooked by busy or stretched business owners in spite of the potential ruinous implications of getting it wrong. An IP dispute is beyond the resources of many small businesses.

Indeed, a WIPO report last year put the average cost of domestic IP litigation at more than a quarter of a million pounds ($475,000) with cases on average lasting three years. 

The UK government has been attempting to improve the situation for small businesses. In particular, Intellectual Property Enterprise Court and improved mediation for IP disputes by the UKIPO. Even so, costs and timings can still prove to be a barrier to action and in many instances, a dispute can be the death of a start-up.

It is therefore critically important for any small business to be aware of the various IP rights which can be taken advantage of during the course of trade. These rights may arise automatically or by way of registration and can be of significant commercial value.

Trade marks

It is generally advisable to register your business or brand name as a trade mark. This will help prevent others from using your mark or a similar mark for identical or similar goods and services for a renewable period of ten years. Once registered, using the ® symbol will notify third parties of your right and may discourage unauthorised use.

When choosing a brand name, it is prudent to carry out searches to ensure this name will not infringe existing marks. The internet is an obvious place to start, however, trade mark agents can be instructed to conduct more comprehensive searches.

Patents

A patent can be obtained for inventions which are new, involve an inventive step and are capable of industrial application. This is an extremely valuable asset as it gives a 20 year monopoly in exchange for placing details of the invention on the public register. It is worth remembering that there are a number of exceptions to what can be patented (e.g. methods of doing business).

If you are considering applying for a patent, it is important to keep the invention confidential until the application has been filed. Once filed, you will then have 12 months in which to disclose and demonstrate the invention to third parties before deciding whether to pursue the application process.

Designs

Many businesses do not realise that new designs for manufactured items, whilst not always patentable, can be protected as UK or Community registered designs. This is a relatively straightforward procedure and will allow you to prevent others from making articles to that design for up to 25 years.

Even where registration is not possible, you may still benefit from unregistered design right protection. This will apply to original 3-dimensional shapes and configurations which are not ‘commonplace’ in the design field. If established, this will provide some protection against copying.

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