What does a new business need to know about intellectual property?

Providing appropriate protection does not mean protecting everything, everywhere, all at once – and to safely implement those ideas a new business needs to have a clear plan of what needs to be done and when.

Different businesses need different rights at various stages in the journey to being an established business. When can be as important as what.

What’s in a name?

A new business will at some stage need a name to trade under. A new business may adopt different trademarks for the products or services they provide. It can be extremely embarrassing and extremely expensive if a name or trademark infringes on third-party rights.

It is essential for a new business to search for potentially conflicting trademarks that might inhibit trading under the business’s trading name, or from providing products and services under desired trademarks.

Although some rights in a name or trademark may accrue to a business the moment they start trading, these rights can be very local in nature (hence pubs with names such as the Red Lion, the Royal Oak, or the Crown are merely a Red Lion, a Royal Oak, and a Crown and could not prevent another pub adopting that name unless it was in close vicinity).

Relying on such local rights may be enough for a business that is going nowhere and selling only locally, but a business with wider ambition should consider establishing wider rights. In contrast to the unregistered rights gained through use, a registered trademark is national in extent and permits the owner to stop anyone, anywhere in the UK, from using the mark. This limits the scope for parasites to copy.

Registration of a trademark provides national protection, allowing ready expansion of a business within the UK.

Those who will be trading abroad will also need to consider their ability to use and protect their name/trademarks in those territories.

If new business thrives and its name or trademark attracts attention, it may also attract copiers. Ideally a business will have a watching search for trademarks or business names that appear uncomfortably close.

The price of freedom is eternal vigilance.

What are you looking at?

The look and feel of a product or service can be a valuable part of a business’s brand. Copyright can protect some aspects of this but to succeed in a claim for copyright infringement one has to prove copying – which can be problematic. Businesses should ensure that they own the copyright in what sets them apart from the competition, and decide which aspects of their brand merit more reliable protection.

Firmer protection for some aspects of a brand (which doesn’t require proof of copying) can be obtained through trademark registration and registered designs.

UK registered trademarks provide protection for “signs” which are capable of distinguishing the owners goods or services from those of others. These signs can be, for example: words, designs, letters, numerals, colours, sounds, the shape of goods or their packaging, motion marks, or even smells.

UK registered designs can be had for the appearance of the whole or a part of a product resulting from the lines, contours, colours, shape, texture or materials of the product or its ornamentation. Registration is not limited to static designs, and animations for computer interfaces are commonly protected this way.

The look and feel of a business can be protected by one or more of copyright, registered trademarks, and designs. Which is appropriate depends upon the nature and uniqueness of the business.

What’s the big idea?

Some ideas do not relate to the works of “creatives” who produce the look and feel of a brand but to the “usefuls” who come up with new ways of doing things that allow products and services to be better, cheaper, more environmentally friendly, or that open up completely new markets. Such useful ideas can be protected in part as “trade secrets” so long as the ideas are secret, and efforts are made to keep them secret.

While trade secrets may keep a process secret for a very long time, the moment a product is sold the product is no longer secret. Further, it is not unknown for the product of a process to provide sufficient clues for someone to “reverse engineer” the process. In addition, for some ideas it will be necessary to use the process in public, at which time it ceases to be secret.

Patents protect useful ideas. Patents are not available for all fields of technology. Filing a patent application without taking proper advice as to what and when to patent can be an expensive mistake. A further feature of patents, at least in the UK and Europe, is that once an idea is public, it cannot be patented and so action is required before the idea is made public.

For some businesses their useful ideas are their lifeblood and vital to protect.

Trade secrets last for as long as they are kept secret. Once a product is public what is discernible from the product is not secret, and normally what can be determined by “reverse engineering” ceases to be secret.

Patents provide protection for what cannot be hidden once a product is sold or service provided; and may also provide protection for processes if the ability to keep the trade secret secret is in doubt.

How does a new business navigate this?

Document your ideas, keep them safe from prying eyes, and talk to Greenwoods before you start trading to establish:-

• what IP issues might stand in your way;
• what IP you might reasonably seek; and
• what an IP timetable might be.

New businesses have many demands on cashflow, but failing to deal with the IP essentials can dent the cashflow much more than having a clear IP path.