Register your interests

Mention ‘intellectual property’ and the image of a wacky scientist, not unlike Doc from Back to the Future, immediately springs to mind. But it’s not just inventors who have a vested interest in protecting their IP – every business, from hi-tech firms to hairdressers, will own some form of intellectual property. But many aren’t safeguarding their rights, largely because they’re unaware that they need to protect themselves at all.

There’s widespread confusion over what intellectual property is. Contrary to popular belief, it doesn’t just cover inventions, and can actually mean anything from the artistic design and shape of a product to the technology you use, or the brand you create.
Areas of intellectual property can be broken down into four parts: patents, trademarks, registered design and copyright.

Patents

‘Patents protect the way things work, so it’s really about invention,’ says Lawrence Higgins Smith, head of business outreach and education at the Intellectual Property Office (IPO). A patent covers how things work, what they do, how they do it, what they’re made of and how they’re made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission, which is perfect for those in more industrial industries.

To be granted a patent, inventions must pass a series of three criteria, says Higgins Smith. ‘Businesses should be aware that if they disclose their idea prior to filing for a patent, they could invalidate their application, because the first test is that of novelty. The second test is that it must have an inventive step, something that’s not obvious, and the third is that it’s got to be capable of industrial application, which basically means it’s got to do something.’

Before attempting to establish a patent, it pays to do your research. There are over 54 million patents available to view on the IPO website so there’s a strong chance your idea or invention is already patented.

‘Before they embark on any kind of expensive research and development programme to solve a technical problem, businesses would be well advised to have a look at these free databases to see if anyone’s been there and done it before them,’ says Higgins Smith.
Patents last up to a maximum of 20 years, subject to renewals (which are currently required every five years).

Trademarks

Trademarks are the symbols that distinguish goods and services in the marketplace. They can be words, logos or a combination of both, and must establish a particular brand or company in the eyes of the general public. Trademarks need to be distinctive for the goods and services you provide and can’t be offensive or deceptive.

‘Lots of small businesses believe once they’ve registered their name with Companies House, they have rights over usage: that’s not so,’ says Higgins Smith. It’s important to register your company trademark right away – after, that is, you’ve performed a trademark search. ‘Many small businesses come a cropper when they launch without doing a trademark search, and the first bit of post they receive is a cease and desist letter from a trademark attorney telling them that they’ve inadvertently or otherwise infringed somebody else’s trademark,’ he says.

Trademark searches, like patent searches, are free on the IPO website. ‘It’s also worth doing an online search to see whether anyone’s using a name as an unregistered mark, because they can still come after you,’ says Higgins Smith. An established company using the same or very similar name to your new moniker can claim your company is making an attempt at ‘passing off’ your business for their own. Although they don’t have the protection afforded by a registered trademark, it’s not unknown for companies to win these cases, forcing new businesses to embark on an expensive rebranding exercise.

Another reason not to select a name too similar to another business is to protect your reputation. ‘As a small business, you mustn’t overlook the kind of damage done in terms of reputation,’ says Higgins Smith. ‘Someone might be using a similar or the same mark, and if they begin to get a bad reputation in the trade, then the consumer will not necessarily see the difference between you.’

Trademarks, once registered, can be kept in force indefinitely, provided renewals are kept up (currently once every 10 years).

Registered design

Design, of course, is all about the way an object looks – the visual appeal, shape and appearance. ‘Design is crucially important and it’s often referred to as the Cinderella of the intellectual property world, because it’s often overlooked,’ says Higgins Smith. Consumers, particularly in areas like mobile phones, cars or gadgets, often buy a product on ‘eye appeal’ – because they like the way it looks. To be registrable, a design must be new and have individual character.

A registered design can be a valuable asset, allowing you to stop others from creating designs too similar to yours within the same geographical area. Once registered, you’re able to sell your design and the intellectual property rights to it, or license your design to someone else and retain the IP rights.

It’s worth noting that design registration gives you protection for the visual appearance of the product, but not for what it is made from or how it works.

Copyright

Unlike the other types of IP, copyright is an ‘automatic’ right. This means you don’t have to register for it, though it isn’t without its own complications. Copyright covers vast swathes of creative material, including literary works from novels and song lyrics to instruction manuals; dramatic works, including dance or mime; musical works; artistic works; layouts or typographical arrangements used to publish a work, such as a book; recordings of a work, including sound and film, and broadcasts of a work.

Because there is no registration for copyright, a creator has to be able to prove when they created the work to assert their rights. Posting work to yourself (so the envelope is date stamped) has long been a method of attempting to establish a creation timeline, though if ever you create something you deem to be of real value, it’s best to lodge it with your bank or solicitor, says Higgins Smith.

A key factor for companies to be aware of is that copyright rests with the creator – something that can affect businesses who employ sub-contractors to create logos or websites. Make sure that any contract stipulates that ownership of any IP created will pass to the employer who is paying for the creation.

Still don’t think IP applies to your business? Higgins Smith cites two recent examples of businesses that made the costly mistake of not considering IP. One, a hairdresser who was playing background music in her salon, was fined £20,000 because she didn’t have a licence. Another, a small business owner who believed he owned his website, had a nasty shock when he changed designers and realised that the copyright of the website belonged to the original designer, not to him.

‘[Finding out your own IP needs] costs nothing other than your time,’ says Higgins Smith. ‘Prevention is far better than cure.’