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saucony
Oct 4, 2018

Remember you have to protect what is yours

Paul Clapham examines the issues of safeguarding your intellectual property

So just what is intellectual property and why does it matter to a small business like ours? Surely this is just something for big rock stars like Elton John and the mega-rich business owners like Elon Musk.

No, sir, madam, this is for everyone. You can take that quite literally – pretty well everybody has created intellectual property at some time and very few of us have done anything to protect it, or even know why and how they should.

Making proper protection is simply another form of insurance (yet another!). It is about stopping someone from stealing or copying such as the following: the names of your products or brands; your inventions (i.e your ideas turned into reality) the design or look of your products; things you make, produce or write.

Here’s an example: when Ford launched the Sierra lawyers for a little known company called Dutton, who made kit cars, came calling. In broad terms they said: “Ahem did you not know or indeed check that there is a car on the market called the Dutton Sierra?” The number of noughts on the cheque appears to be a well kept secret but it would have been many.

One may also assume that a lot of P45s were issued at Ford and its lawyers, marketing agencies etc.

Quite recently Apple had to pay out over $100 million for a similar legal infringement. Once again you can but assume that a lot of heads rolled. Even for the world’s first trillion dollar company, $100 mill ain’t hay.

So what’s included? It’s actually quite a lot. In essence it is something which you create as a unique thing. It has to have physical form – an idea on its own is not intellectual property. Basically you have to do some mental or physical work. The idea for a musical, brilliant though it might be, doesn’t count – you have to write some lyrics and music.

You own intellectual property if any of the following applies: you created something and it meets the requirements for copyright or a patent; you bought intellectual property rights from the creator or previous owner; you have a product that has a well known and established brand name.

Intellectual property can be owned by more than one person. It can also be owned by a business. It can be sold or ownership transferred to a new owner(s). I have read, however, that agreeing a valuation on intellectual property can be extremely difficult – it is by definition unique, which the seller wants reflected in the price.

I said above that almost everybody has created intellectual property. That’s true but they won’t own it if the creation was done on work time. In that case the employer would own it, not the creator. If the creativity is done out of work time, it predictably becomes more complex, especially if the product created could be deemed competitive with the employer’s products.

If you are self-employed the problem goes away, although not entirely. You can have a contract effectively forced upon you that says that your product becomes the property of your paymasters and this is legal. Of course, you can refuse the contract but good luck getting any work.

So you protect your intellectual property. You do this in various ways, some free, some not. Since free is everybody’s favourite price we’ll start there. Copyright and design right are both automatic. The former covers written works, art, photography, films, TV, music and web content.

Design right is more complex since it covers the shape of objects. Some of this can be the sort of rat’s nest that makes lawyers rich if two parties decide to fight. Approach with care if you believe yourself cheated. Protection you have to apply for and pay for includes trade marks, registered designs and patents. Trade marks are typically for product names, logos, jingles and the like. Registered designs over the appearance of a product including the shape packaging colour scheme and overall appearance. Patents are right for inventions and products. That could be anything from a brand new machine, through a machine part to a box specially designed for its purpose as applied to one client of mine.

You won’t be surprised to learn that this is not an instant process – nor should it be. It can take up to six months, longer if your product is particularly complex.

Consider getting the help of an expert. Certainly find out what that would cost – it could save you sleepless nights and save money too in the long term. Start by looking at the IP Equip service to make clear what sort of intellectual property you have. Consider talking to a lawyer who specialises in trademarks or patents; initial consultation is usually free. Go to the British Library Business and IP Centre, Bloomsbury, London. There are local events addressing IP – ask the British Library what’s available to you.

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