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Intellectual property

Intellectual property (IP) isn’t solely relevant to larger businesses or those involved in developing innovative new products. All businesses have IP – and it can be a highly valuable asset that needs protecting. It is the difference between the value of your business in terms of its physical assets and its real value in the market.

What is intellectual property?

A trade name, brand name, logo, visual identity or even something as simple as a special process are all forms of IP. They can set your small business apart and enable you to offer customers something distinct or superior. 

Businesses also develop products or components whose value lies in their pioneering design, which are also forms of IP. It exist in products, services and processes. 

Providing it is truly marketable, you could earn additional revenue by selling or licensing your IP –  although you should always be careful that this won’t harm your own sales. Franchising and merchandising are common examples of this. 

As well as protecting your own creativity, finding out more about intellectual property can prevent you from unintentionally infringing someone else’s IP – which could prove a costly mistake. 

To get the most out of your IP, you must seek sound legal protection. First you must carry out a comprehensive audit of your business to identify your IP. Then you can decide what needs protecting – and how you're going to do it. Just because your IP is protected in the UK doesn’t mean it’s safe elsewhere. Most intellectual property rights need protecting separately in different territories.

Trade marks and design rights

Trade marks are used to protect slogans, symbols, logos and brand names, etc – all potentially highly valuable marketing tools. Common law grants some protection, providing sufficient goodwill has been established. However, for added protection, you should register any important marks. Trade Marks need to be registered in each country where you want to protect them, although it is possible to obtain a single registration to cover all of Europe, called a Community Trade Mark

If you’ve designed an object’s appearance, it will be protected automatically by design right. But if your design is infringed, the burden is on you to prove that the infringer copied your design and did not just come up with the design independently. Better to register your design, which will protect it for 25 years and give you the right to sue whether infringement is intentional or not. Designs need to be registered in each country where you want to protect them, although it is possible to obtain a design registration to cover all of Europe. This is called a Community Registered Design.

Patents and copyright

Patents prevent others from making, using or selling something without the inventor’s consent. They concern the functional and technical aspects of products and processes. Patents must be registered and protection can last as long as 20 years. You can only patent an invention if no one has already done so, and once protected its details are published. Patents are registered on a country-by country basis.

If you are considering developing a product or process, first check whether patents already exist. You must make sure no one else has patents that prevent you from making the most of your product or process. The flip-side is published patents can often reveal a lot of useful information about how to solve technical problems. 

Copyright is an automatic protection – it doesn’t need registering. It safeguards original literary, dramatic, musical and artistic works that result from intellectual effort or creative skill. You could copyright your website content, for example. Copyright exists as soon as something is written, but date of creation still needs to be proved in court.

As well as patents, designs, trade marks and copyright, businesses often have other valuable information. This can include client lists, databases of client information and trade secrets (eg the recipes for Coca Cola and Kentucky Fried Chicken, which have been kept secret for decades and are part of what keeps consumers buying those products).  

Find out more about IP

The best place to go for more information on intellectual property law for small firms and start up businesses is the Intellectual Property Office.

As well as solicitors (some of whom specialise in IP), patent attorneys and trade mark attorneys can assist with the identification, protection and exploitation of your intellectual property. You can find a patent attorney via the Chartered Institute of Patent Attorneys website. Alternatively, you can contact a trade mark expert near you via the Institute of Trade Mark Attorneys website.

Just because your IP is protected in the UK doesn’t mean it’s safe elsewhere. You can register a trade mark in each European Union country or apply for a community-wide trade mark via the Office for Harmonization in the Internal Markets. If you’ve applied for UK trade mark registration, you can also apply for an international trade mark. Visit the World Intellectual Property Organisation website for more information.

More on this topic:

Find more articles, videos and tools in the Resources box on the right. Alternatively, find more detailed guidance on intellectual property on the Law Donut.