13 min read

What is intellectual property and what can I do to protect it?

As many as one in four smaller businesses believe their intellectual property (IP) has been violated. Here’s how you can help to protect your IP and avoid infringing the IP of others.

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What is intellectual property (IP)?

Intellectual property (IP) is something original you create. Just having an idea doesn’t mean that the idea becomes IP. But things you create from that idea count as IP, for example:

  • Things you invent
  • Things you make / produce
  • Things you write
  • The names you give products or brands
  • The design or look of things you invent, make, or produce.

What are the different types of intellectual property?

There are four key areas of IP:

  1. Patents
  2. Copyrights
  3. Trade marks
  4. Registered designs.

Each area provides a specific type of protection for a business’ product or service. Sometimes only one type of IP is required but sometimes a combination of different IP is used to give a broader scope of protection to a business.

In this article we will look at the various types of IP and discuss how to leverage those assets to strengthen the value of your business.

What’s the business case for understanding my IP?

Intellectual property, like any other tangible property, is an asset, so owning it adds value to your business. If you are seeking investment, looking to franchise your business model or even planning to expand into other countries, a lack of IP ownership can negatively impact your ability to do so.

All too often, poor IP management can lead to a loss of market share, having to rebrand or even worse, loss of the business itself.

So understanding which IP rights are appropriate for your business and taking proactive action to implement those rights will only serve to bolster your business.

Let’s take a look at each type of IP a little closer:

What is copyright?

Copyright is an automatically occurring right. This means you don’t have to apply for it or pay a fee. It protects your work and stops others from using it without your permission.

Copyright automatically occurs when you “put pen to paper”, for example when you:

  • write a book or a play (including any illustration and photography) or paint a painting;
  • write software code for an app or website;
  • create sound and music recordings;
  • make film and television recordings;

Soon as these works are created, copyright will automatically exist. A good way of notifying others of your rights is to mark your work with the copyright symbol (©), your name and the year of creation.

  • How does copyright protect my work?

    Copyright prevents people from:

    • copying your work
    • distributing copies of it (regardless of whether it’s for free or for sale)
    • renting or lending copies of your work
    • performing, showing or playing your work in public
    • making an adaptation of your work
    • putting it on the internet.

  • What if work is commissioned?

    Where work is commissioned, ie. you pay a third party to create a logo or a sculpture, the creator will be deemed to be the owner not the commissioner, unless there is an agreement transferring the ownership to the commissioner (also known an assignment of rights).

  • Why does copyright matter?

    It is highly probable that your business already contains elements that are protected by copyright. If you designed a logo or created a unique name, for example, this would already be covered by copyright. If you consider a mobile phone, for example, you can see that things such as the user manuals, jingles, or even the code that makes the smartphone work are all forms of copyright.

  • What if someone infringes my copyright?

    If you think that someone is infringing your copyright you need to approach them – they may be doing so unwittingly. Once informed, they might stop using your work or agree to licence it from you for a fee. If they don’t, you may have to consider taking legal action.

Case study: Apple vs Swiss Federal Railways

To give you an idea of how important copyright can be, in 2012 Apple reportedly paid Swiss Federal Railways $21 million for use of the copyrighted clock design (pictured) that it included in iOS 6. Apparently, Apple had, without consent, used a similar clock face on their products, which the Swiss Federal Railways objected to, resulting in Apple having to pay a large sum of money to settle the matter.

What is a patent and how do they work?

Patents protect inventions. They give you the right to control how the patent is used and by whom. A patent can also be used to take legal action against anyone who makes, uses, sells or imports the invention without your consent.

If you invent something with lots of commercial potential you should consider getting a patent to protect your exclusive right to use it. You can patent a product, a process, or equipment/tools.

The advantage of holding a patent is that without your permission, no-one else can legally manufacture, sell, or import your invention in the countries where you hold the patent, for a fixed period of time (20 years in the UK). This makes it potentially lucrative for you, as you can sell or license the patent.

A disadvantage of applying for a patent is that it can be time-consuming – up to five years. Also, the application process involves making some technical information publically available, so your invention is not a total secret. If a patent is granted and someone infringes it you may need to get into an expensive legal process to defend it.

Patents are usually confused with other IP rights such as trade marks which often leads to a misunderstanding that all IP is as expensive or time-consuming. This is not the case (e.g. copyright occurs automatically and does not require registration) and a patent has a very specific part to play in protecting inventions that meet the criteria.

Applying for a patent

Application can be a complicated process – 95% of successful applicants hire patent experts to help them. On average, applications cost £4,000. If you’re successful you need to renew the patent every year. More information can be found in the panels below.

Starting the process

To be granted a patent, the invention must be:

  • something that can be made or used
  • new
  • inventive and not just a simple modification of something that already exists.

It cannot be a way of doing business, an artistic work, a theory or discovery, nor a way of presenting information.

If you do decide you want to go ahead and apply for a patent, you need to start by checking for similar patents. You then prepare your application, including descriptions of the invention, legal statements, a summary and drawings, before submitting it to the Intellectual Property Office (IPO), along with an application fee. 

For protection outside of the UK you can file an application with the European Patent Office and/or the Patent Cooperation Treaty, which handles patent protection for 140 countries. You can also apply to patent offices in individual countries.

Where to go for advice

It’s important to keep your invention under wraps before you launch it. You may be approached by various people in the course of a patent application, who offer to help you through the process or promote your invention.

Take advice from a solicitor or patent attorney before talking to anyone, and certainly make sure any conversations are covered by an non-disclosure agreement (NDA).

What does “patent pending” mean?

As patents can be expensive and time consuming, this is why you may hear people speak about “patent pending” because they are waiting for their patent to be granted.

If have invented something which you would like to patent, before you speak to anyone about your new idea, make sure that the other party agrees to and signs a non-disclosure agreement (NDA). Do not disclose your invention otherwise you will not be able to patent it and you will not be able to control how or who uses your invention.

02:49

Video: Apple vs Samsung

by The Telegraph

In 2012, in a High Court decision, Samsung’s tablet was found not to infringe Apple’s registered design for its similar looking iPad. Why? Because the iPad was “cooler”!

What is a registered design?

The advantages of registering a design include that it offers more of a deterrent against copying than the automatic design right. A registered design can protect the following:

  • The appearance of a particular icon of an app (see again our smartphone example above).
  • The physical shape, for example, a sculpture or the shape of a vase.
  • A configuration (eg, how different parts of a design are arranged together) such as a jigsaw puzzle.
  • A decoration, for example, a pattern on a wallpaper or a label for a jar.

  • What can you do with a registered design

    A registered design gives you the exclusive right to make, use, sell, import and export any product carrying the design, whether it is a shape or ornamentation. It also means that you can stop others from using your design (or a very similar design) if they do not have your consent.  

    Interestingly, a registered design can be used to protect brands that do not qualify as a trade mark and provide an alternative form of protection.

  • How long does a registered design last for?

    If granted, the registration can last 25 years, but to do so it must be renewed every five years by paying a renewal fee. A registration can be obtained within a month of applying for it.

  • What is the criteria for getting a registered design?

    The design must meet the following two criteria in relation to designs made available to public at the time of making the application:

    • must be novel, i.e., it must differ from prior designs by more than immaterial details; and
    • must possess individual character, i.e., it must produce a different overall impression on the informed user from prior designs.

  • What is the grace period of a registered design?

    If you have made the design public, then you will only have 12 months to file an application for a registered design otherwise you will not be able to claim protection. Disclosing your design may also have an impact on protecting it in other territories. Therefore, ideally you should consider applying for a registered design before making it public and remember, use an NDA when speak to others about the design.

  • What is not covered by a registered design?

    A registered design cannot protect:

    • features of a design which are solely dictated by the product’s technical function, e.g., a syringe;
    • features which are required to permit the product to be connected to or placed in, around or against another product so that either product may perform its function, e.g., a plug and socket.

  • How do I register a design?

    To register a design you need to send an application form, together with drawings and the required payment, to the Intellectual Property Office.

    Allow one month for your application to be examined. Once a design is registered it becomes public. If you want to delay this, for example if you need more development time, you can defer your registration for up to 12 months. At the time of writing, the fee for applying to register a design is £60. This is reduced to £40 if you want a deferred registration.

    You need to renew your design registration every five years. 

    To apply to register a design, go to the Apply to register a design page of GOV.UK. 

1:0

Video: The origins of VELCRO®

by VELCRO® Brand

When Swiss electrical engineer, George de Mestral, was on a hunting trip, he noticed parts of a flower continuously sticking to his clothing. Intrigued, he took some home and studied them under a microscope. He noticed that each piece contained thousands of tiny hooks that bonded to nearly any fabric. Inspiration struck and this was how the "hook-and-loop" fastening system was created. He named it after a combination of the words, "velvet" and "crochet". This was then shortened to "velcro".

How does trade marking work?

A trade mark is a symbol, shape, word, group of words, or combination of these, which is used to distinguish a brand from others. A company name can be used as a trade mark, but registering a company doesn’t automatically provide trade mark protection – the name must be specifically registered as a trade mark as well.

The advantages of having a registered trade mark to protect your brand include the right to put the ® symbol next to it, which warns others against using it. It also makes it easier to take legal action against  counterfeiters, and to sell and licence the brand.

Trade marks mustn’t be misleading, nor can they describe the goods or services they relate to, e.g ‘Perfect Plumbing’. They can’t be offensive (e.g contain pornographic images or offensive words). They can’t be three-dimensional, nor be too common in your line of trade. Nor can they based on symbols of state, such as flags.

What can I register as a trade mark?

Generally speaking, names and logos are typical types of trade marks. However, you can also protect the following:

  • Shape (e.g., the Coca Cola bottle);
  • Position (e.g., the red sole of Louboutin shoes);
  • Pattern (e.g., Louis Viton pattern)
  • Colour (single) (e.g., the green colour of BP petrol stations);
  • Colour (combination) (e.g., the black and yellow of Black and Decker);
  • Sound (e.g., the lion roar at the start of a movie or the McDonald’s jingle – “I’m loving it”)
  • Motion (e.g., the first motion mark to be filed in the UK by Toshiba)
  • Multimedia (e.g., Netflix’s “opening” sequence and sound)
  • Hologram (e.g., the Google “G” hologram)
  • Smell – these are very hard to obtain protection for, but in theory, it is possible.

Remember, a trade mark should not be descriptive, I.e., calling your brand “soap” for cleaning products, but you could register “soap” for computers.

Therefore, the more unique the brand, the better. Think Spotify for music streaming services or Amazon for retail services.

Why should I trade mark my brand?

The Chartered Institute of Trade Mark Attorneys (CITMA) says that:

“Registering your company name or owning a domain name gives you virtually no legal rights to stop someone else from using your name or logo.

If you start using a logo or name without registering it as a trade mark and without checking that it is free to use, you risk later finding out about a company with a similar name, or even receiving a letter telling you to stop using your mark because it infringes an already registered trade mark.

You also risk someone else registering it as a trade mark and attempting to stop you from using your own brand name – whilst there may be scope for you to push back on the basis of any goodwill you have accrued via “unregistered rights”, it can be costly and time-consuming to prove you have earlier rights in a mark.

As your reputation grows and you become established, the more likely it is that people will start to copy you. Having the protection from registered trade marks means you can take action to stop this”.

Failure to properly protect your business brand can cause a lot of issues further down the line and may mean having to rebrand in some circumstances.

In addition to being able to prevent others from using the same or similar brand, a trade mark will add value to your business. It will make your business more attractive to investment as well as increase its value if you want to sell it. Remember also, if you are intending to franchise your business, then a trade mark is a must so that you can control who and how your brand is used.

Are trade marks effective?

Of the four main types of IP, trade marks are one of the most effective forms of protection a business can obtain. Most businesses will have a brand name for their product or service (perhaps in addition to a patent, copyright or design right), which the consumer will refer to it by.

A common misconception is that a registered company name or domain name is sufficient to provide protection for your brand/business name. This is not true. Only a trade mark can protect your business name and, in fact, a trade mark actually trumps company/domain names so owning one can even help you in removing a company/domain name that is a potential infringement.

So by registering your brand name you will add value to your business, prevent others from using the same or similar name and also protect your customers from less reputable competitors.

But remember, not all trade marks are made equal. The more unique your brand name is, the stronger the value and enforceability of your brand (eg, Spotify). The more descriptive your brand is, the less powerful a right it becomes (eg, a car wash called “The Car Wash”).

What are the things to consider when filing a trade mark?

The trade mark process in the UK can be relatively straightforward and cost effective. Here is a simple 10 step guide to registering your trade mark from specialists Pulse.

Whilst it may appear relatively easy to file an application for a trade mark, it is a complex process and there are a number of complex considerations to bear in mind, such as:

  • Will your application cover the right selection of goods and services to ensure longevity and enforceability of the trade mark?
  • Are you future proofing your trade mark? i.e. are you taking into account the evolution or expansion of the business or new trends such as NFT’s and the metaverse.
  • Is your brand sufficiently strong or unique enough to ensure your application is successful first time?
  • Other than the brand name itself, have you considered any other aspects of the brand that could be registered such as a jingle, a particular colour or the shape of a product? A separaet application will need to be made for each element you wish to protect.
  • Have you thought about what territories you should protect your brand in and how this ties into your business’ expansion plans? A trade mark is territorial in nature, meaning that if you obtain trade mark protection in the UK you cannot enforce that right in the USA or Australia for example. You will need to protect your brand in each country you intend to use it.

Working with an expert is crucial to ensure that the above points are not only considered but are also acted upon to ensure your trade mark application is seamless and successful.

How long does a trade mark last?

Once registered, a trade mark can last up to 10 years. This can be extended forever, as long as you use the mark in course of trade mark and pay the renewal fees every 10 years.

What sort of intellectual property issues should I be aware of regarding my business’s website?

Because it’s so easy to get hold of images on the web, some of us assume that we’re allowed to use them on our website. In most cases, someone will own the copyright on a photograph or illustration, so you can’t use it without permission.

If you come across an image that’s royalty-free, this doesn’t mean that you can just go ahead and use it. The “free” in the term means that the image can be used without needing to pay additional royalties, but normally you still have to pay a one-off fee to obtain the right to use it on your website.

Another issue that sometimes occurs with websites concerns the design. If you’ve used an external contractor or agency to create your site, ensure that they assign you all IP rights for the site – get this in writing.  

Quiz: Which of the following types of IP are protected automatically in the UK?

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In summary: Don’t wait until it’s too late, be proactive

In today’s world it is even more important to understand what IP your business has and how to exploit it to obtain a competitive advantage and increase the value of your business.

Implementing IP strategies should be seen as just as important as any other strategy and not just when a problem occurs. Being reactive rather than proactive often means that your position is weakened. Therefore, whether you offer goods for sale, provide services, solve a problem through a technical solution or make a unique design, understanding how to protect your IP at the outset could give your business that extra boost.