Intellectual property (IP) rights are potentially some of the most important assets a business owns. IP - which can range from intricately complicated software to the design of your logo - can help to set your business apart from competitors, offer customers something new, be used as a security for loans and even be sold or licensed to provide a revenue stream for your business.
Why businesses should protect their intellectual property
IP is often not as complex as it seems from the outset, but it does need to be approached systematically. If businesses fail to take preventative steps then they may find themselves unable to take advantage of opportunities, such as exclusive distribution and/or licensing deals, as they arise. Failure by a business to keep its house in order can often encourage the competition to capitalise on this lack of IP protection to overcome what would otherwise be a competitive advantage.
Intellectual property portfolios
It is very easy to spend money on obtaining registered rights when in reality some valuable IP protections are free, and can be secured without any registration formalities. Copyright for example is, in many jurisdictions, an unregistered right which effectively arises automatically on the creation of a qualifying work (for example a literary work or an artistic work). However, it should be remembered that legal costs may come when it comes to enforcing those rights, particularly if there is a cross-border element – so a level of investment may be still be needed to police the protection they afford.
This is in part why it’s important to have an established IP portfolio (to include a central record of both registered and unregistered rights) in place or, at a minimum, to have reached an informed decision as to the level of IP protection which is required. Businesses can save money in the longer term by having the right protection in place – giving them the proper ammunition to police and exploit their creative endeavours.
An IP portfolio that a business builds will often reflect its wider approach to commerce. For example, a more rigorous and aggressive approach to IP protection and exploitation is likely to be taken if business owners have a clear exit plan and need to maximise the value of their business within a given timeframe. The same is true of specific sectors, such as the toy and infant product industry, where there is significant investment in new product development and a reliance on trusted brands. This requires the leading players to have extensive protection in place and therefore tend to spend big and enforce even bigger.
Discrepancies to consider
Discrepancies such as the differences between IP protection in the EU and outside of it should also be considered. There is presently a significant degree of harmonisation in terms of IP law across the EU. By way of example, the EU trade mark allows a UK business to obtain pan-EU protection through a single application process. In the light of Brexit there is now a very sizeable question mark over those legacy trade mark registrations and what will happen next. We anticipate that steps will be taken to maintain an equivalent level of protection for existing trade mark owners, but it’s not clear at this stage how this will be implemented.
The current unified approach across the EU does not translate further afield. The majority of major UK law firms should have a good understanding of well-trodden export markets (US, China, India) but more esoteric territories less so. That said, if a business involves its lawyers then they should be able to tap into a network of trusted local advisors in the relevant territories.
Prevention over cure
Adopting a rigorous, systematic approach that is tailored to a business’s needs is a good general rule of thumb to protecting IP. If a business has taken time to identify its rights and build an IP portfolio, then it should be in a far stronger position to swiftly combat such threats - potentially allowing an issue to be nipped in the bud with a hard-hitting lawyer's letter before it escalates.
David Thompson is a partner at law firm Michelmores