Intellectual property rights are your company’s crown jewels

David Schollenberger, Partner and Head of IT/IP, Healys LLP

David Schollenberger, Partner and Head of IT/IP, Healys LLP

It is continually surprising how many otherwise well managed companies of all shapes, sizes and industries have brilliant business plans and spend a fortune on developing and marketing their products and services, but neglect to take steps to adequately protect their intellectual property.

Intellectual property rights are the crown jewels of a company. Protection of IP rights for a company is vital to ensure that the investment in developing your brands won’t be lost, that your competitors or your employees or consultants won’t steal and exploit the expression of your ideas, technical processes and brands. Protected IP assets in your company add tangible value to your company and can be licensed to others for royalties or licence fees or sold.

To start with the basics, what are the key forms of intellectual property and how can they best be protected?

Copyrights

Copyrights are the expression of an idea in a work. Copyrights arise by the creation of the work and are the property of the creator of the work. Examples of copyright rights are literary works such as writing a book or a technical manual, directing a film or programming software. Copyrights in the UK are governed by the Copyright Act and case law. It is unlawful to copy or exploit the use of a copyright held by another, with some limited exceptions.

Copyrights may not be registered at the UK Intellectual Property Office so evidence of copyright should be kept by companies to show it was their original work. The ©mark should also be used followed by the year that work was created and the copyright arose. If for example a software work was created by Softco, Ltd in 1995 and is continually annually updated, the copyright notice should display ©1995-2015, Softco, Ltd. Copyrights expire after a certain period after the death of the author and may not be renewed.

Companies need to be careful to include provisions in employment and consulting agreements to ensure that copyright and other forms of intellectual property are owned by the company and not the employee or consultant creating the work.

Trademarks

Trade marks protect the identification of goods and services. Trade marks, unlike copyrights, may be registered at the UK Intellectual Property Office or for a EU wide trademark at the OHIM office in Alicante, Spain . The trade mark must be distinctive and not be identical or confusingly similar to another than is already registered. Words alone or styled logos may be registered. Trademarks are registered for a specific class or classes of services. Registration requires an application to IPO, which will vet the trade mark and publish it for a period to allow a period for others to object. Successful registration allows the holder to preclude others from using the registered mark in that class or goods or services and sue parties that do so trade mark infringement. Trademarks must be renewed periodically by payment of a renewal fee, but may continue indefinitely.

Trade mark protection must be registered on a country by country basis so it is important to register your brand names in each country where you intend to do business. Trade marks are frequently commercially licensed in merchandising agreements , distributor agreements or in stand alone trade mark agreements.

Patents

Patents protect unique and new technical processes. They may be registered at the UK patent office. The IPO will extensively vet the patent to ensure it is unique and new. The process of the registered patent will be published. Holders of successfully registered patents may preclude others from using the patented process and commercially license the patent in patent licensing agreements or in conjunction with confidential know-how technology licensing agreements.

Patents unlike trademarks but similar to copyrights, expire after a certain number of years and after that time may not be renewed. Patents, like trade marks, must be registered on a country by country basis so it is again important to review the countries where you will be doing business and have the patent registered there.

Confidential Information

Confidential information is information proprietary to a business such as sensitive financial information, non-patentable secret processes or customer lists that a company wishes to limit from disclosure to third parties. Confidential information may be protected by Non-Disclosure or Confidentiality Agreements or Know-How Agreements.

It is very important to have non-disclosure agreements with consultants and employees and with any third party to whom confidential information is being disclosed in the course of a business relationship or potential business relationship to avoid inadvertently giving away valuable assets.

Conclusion

An audit of intellectual property held by the company and strategy for protection of the intellectual property is the first step to protect and preserve the value of a company. This should then be followed by appropriate registrations, agreements or other protective measures. Management of companies who have neglected this area should attend to this as a matter of urgency.

 

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David Schollenberger, Partner and Head of IT/IP, Healys LLP

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