Why protect intellectual property
Intellectual property, copyright and trademarks can be a bit of a minefield for businesses. There are many types of intellectual property protection available to prevent misuse of your brand identity, website or business creations. But which offers the most protection, and how can you fully protect your business from intellectual property abuse?
What is intellectual property?
Intellectual property (IP) applies to anything unique that you physically create. This could be a name of your brand or product, an invention, a product, written content, a song – the possibilities are endless.
However, it only applies to items that have been physically created, not an idea alone. To illustrate this point, the gov.uk website gives the example that an idea for a book would not count, but written words would.
Protecting your design rights
Patents, trademarks and copyright protect your IP in law and allow you to earn recognition or financial benefit from your creations. They also protect your IP from being stolen or copied.
Copyright and design rights are applied automatically whenever you create something.
Patents, trademarks and registered designs have to be specifically applied for. During the application time, your designs are only protected by copyright and design rights. To give your application the best chance of success, and for optimum design protection, keep your intellectual property secret during the application process until the registration is completed. Non-disclosure agreements can be used if you need to tell someone about the IP.
Should you trademark your brand name?
Trademarking your brand name allows you take legal action against anyone who uses your brand without your permission. Before registering your brand name as a trademark you need to check if your brand qualifies. Applications start at £170 and usually take around four months to be completed.
If your brand name isn’t trademarked then you only have common law rights to rely on if someone else starts using your brand. Common law rights are geographically limited and therefore won’t protect you in other countries. For example, if your UK based business is called “Golden Goose Illustrations” and you are not trademarked, there’s nothing to stop someone in another country from creating a business with that exact same name.
Common law can be complicated though, even in the same country. If someone else is already using the same name as you (even if you are unaware of each other) and they decide to trademark their name, you would have to change the name of your business to avoid breaking their trademark. You can find out more information about UK trademark law here.
It’s important to note that registering a domain name with your business name is not the same as trademarking and does not give you any legal ownership over your brand name.
Passing off and trademark law
In the UK, passing off can be used in law to enforce unregistered trademark rights. For example, this law prevents businesses for claiming a false affiliation or connection with your business. It also stops people from misrepresenting goods as belonging to or originating from your business. This can help to prevent counterfeiting of your products.
However, passing off should not be relied upon as an alternative to trademarks as it does not guarantee that disputes will be found in your favour. Unlike trademarks, there are no set legal definitions as to what situations would qualify for passing off.
The importance of terms and conditions
It’s important to have written terms and conditions in place when completing business, especially if you don’t have trademarks or patents to protect you. Your terms and conditions should be specific to your business – never copy from somewhere else (this may infringe on their copyright!)
Your terms and conditions should create certainty with the reader as to exactly what they are agreeing to when they do business with you, and what they are/aren’t allowed to do after procuring your products/services.
Many business websites contain a “terms and conditions” link which outlines the copyright and usage rights of all website content (including logos/text/images/photos/videos). For example, if you don’t want anyone using your content or photos on their own websites, or republishing them anywhere online, say so in your terms and conditions in order to help facilitate the resolution of any potential IP breaches in the future.
To ensure maximum protection from your terms and conditions it is advisable to have them written by (or at least checked by) an intellectual property lawyer.
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