5 minute read
Harnassing and protecting the value of your IP
Harnessing and protecting the value of your IP
Intellectual property lies at the heart of every business or creative endeavour. There is, inevitably, an awareness spectrum. At one end are the entrepreneurs and creators operating successful businesses, blissfully unaware of the potential for enhanced or layered revenue, the value of formal protection, the security of defensive policing, or the fortifying effect of enforcement. Most of the time, there are few problems; they are merely missing out on the benefits. At the other end are the enlightened. These are the people making their IP work for them.
Whatever the business, whether it is exporting widgets, TV or film production, providing software as a service or publishing children’s books, there will be a bundle of intellectual property rights underpinning the offering.
Trade marks and passing off
Often the value of a product or service is in a brand name or logo. Once a business has sales under its belt, goodwill in the brand is generated. That goodwill becomes the attractive force that drives further sales, and the growth curve rises. Enter a competitor on the market. The fledgling brand feels threatened, the competitor is perhaps cutting corners and borrowing the look and feel of the new brand. This is a form of unfair competition known as passing offthe competitor is deceiving the public into thinking that its offering emanates from or is associated with the new brand. A prompt letter before claim (or “cease and desist”) delivered before the competitor propagates its deception too far can often make the problem go away. It can also lead to a healthy settlement payment and a welcome reinforcement of the brand’s authority on the market. Not all bad news! If the new brand has already registered its trade mark, this provides a more robust basis for enforcement.
In the early stages of a business, registration of key trade marks, engaging a trade mark watching service and maintaining a proactive enforcement policy will generate a forcefield around a young brand, strengthening its position in the market and increasing its inherent and investment value.
Registering a trade mark and maintaining a good policing and enforcement policy opens a business up to new revenue opportunities in the form of investment, partnership, licensing and franchising. Harnessing these opportunities with clearly-drafted, industry-specific agreements can lead to exponential growth of turnover and reputation.
Copyright and related rights
Copyright comes in all shapes and sizes: literary, dramatic and musical works, artistic works, sound recordings, films, broadcasts, databases, typographical arrangements... It has a tendency to sneak under the radar - in the UK, copyright arises as soon as the underlying idea is expressed in material form. There is no property in an idea, but copyright in a work embodying an idea is a form of intellectual property that can be bought, sold and licensed like any other.
Every business is sitting on a mine of copyright works. Some of these comprise the value of the offering itself, for example, copyright in computer programs, books, films… Other copyright works may form part of the business infrastructure, such as website copy, business plans, customer databases. Whereas the latter may not be products in themselves, they can have substantial value. An astute business will operate a proactive enforcement policy when it comes to its key copyright works, whether offering or infrastructure. Either way, prompt action is recommended in the event of any suspected infringement.
Simply being aware of the existence and value of copyright can shine a torch on any as yet unexploited rights which, with the right strategy and commercial agreements, may be capable of generating additional income streams.
Confidential information, trade secrets, privacy, data protection
Compliance with UK privacy and data protection laws is mandatory, and should be a top priority for every business. Penalties for noncompliance can be severe. Trade secrets and other confidential information should be protected by non-disclosure agreements (“NDAs”), strict in-house policies on distribution and eyes-only, and clear confidentiality terms in contracts with third parties. Any suspected breach should be followed up as soon as it is detected and not left to leak further. If the subject matter is diligently protected, it can lend itself to commercial exploitation as if it were property. Think of the recipe for Coca Cola!
Unregistered design right, registered designs, patents & inventions
It goes without saying that registered designs and patents form the backbone of a large proportion of businesses. However, many thriving businesses may not have made that application to register key designs or that application for a patent. This may not be fatal, as unregistered design right can subsist in original designs of shape or configuration of a key product or part of it. Like copyright, design right arises automatically and can form the basis of an infringement complaint. The right to apply for a patent resides with the inventor, and can also provide the basis for action in certain circumstances. If design or invention is the foundation of the business, then obtaining registration of designs or the grant of a patent should be a priority. A registered design or patent in hand opens the product up to myriad opportunities for exploitation in the UK and abroad. As always, a proactive enforcement policy is recommended.
Final word
An IP audit can identify and categorise the IP assets of a business. The IP assets can then be the subject of an IP valuation. An awareness of the nature and value of the underlying IP of the business is an excellent motivator for establishing and maintaining a protection campaign for key assets, and for operating a proactive policing and enforcement policy to secure the business’s position and authority in key markets.
Chris Pearson
Barrister Intellectual Property, Media & Entertainment,
Lamb Chambers, London
