Q. I have been in business for two years selling and designing furniture. I am also always coming up with new business ideas. People keep asking me if I have protected my “intellectual property rights”. I don’t know where to start – what options are available to me
A. “Intellectual property” is the generic name given to a whole host of important intangible rights, which may be of great value to your business. Some of the rights need registering and others arise naturally without the need for registration. The key rights are as follows.TrademarksIf your business is well known under a particular name, or a particular logo, you should consider registering that name or that logo as a trade mark. Registration can be made either in the UK or in the European Community. If you are doing business in Europe, it is always advisable to apply for an EC Registration as it gives you the benefit of having a trade mark registration in each and every European country, with the costs only slightly higher than a registration in the UK.
Having a trade mark registration makes it easier for you to stop others using your brand and also gives you an asset which can be licensed to third parties, and valued on the sale of your business. If you do not register your name or logo as a trademark, you will still have unregistered rights in your name and may be able to take a legal action known as “passing off”.
Top tip: In any trademark infringement or passing off action, it is vital to demonstrate the strength of your reputation – always keep records of any advertising you undertake, any press articles in which you are featured or any prizes or awards you have received
Design RightIf you or your employees have designed any products, then it is likely that you own the “design right” in those products. There are two types of design rights: unregistered and registered. Registrations can be made at the UK or EC Registry as for trade marks.
Whether or not you have a registration, unregistered rights will subsist in your designs both in the UK and Europe . Those rights will last for 15 years (in the UK) and 3 years in Europe. Registered designs can last for up to 25 years in both the UK and the EC.
Top tip: Unregistered design rights are real and they can be readily enforced. Always remember to keep copies of your design drawings and all other documents relating to the design of a particular item as those documents will be needed to evidence your unregistered rights
ConfidentialityIf you come up with a good idea and want to “pitch it” to someone, there is generally only one way to protect yourself – through the law of confidential information. There are two options: (i) you can ask someone to sign an NDA (Non Disclosure Agreement), which will give you contractual rights if they subsequently use your idea; or: (ii) if someone is unwilling to sign an NDA, the law still prevents that person from disclosing information that you have disclosed to them in confidence.Top tip: Whenever submitting any pitch documents always mark them “Private and confidential not to be used without permission of the author".
PatentsIf you have an idea for a product or a process that’s both unique and involves an inventive step, then you should consider applying for a patent. Although patents are not cheap, and can take a long time to be registered, the protection afforded by them is very wide and any patent will be a valuable asset to your business.Top tip: If you do come up with an idea which may be patentable, do not tell anyone before applying for your patent – disclosing an idea in the public domain will mean that you will not be able to get your patent.This article was written by Adam Morallee, who is a partner at Mishcon de Reya.