How to Safeguard Your Intellectual Property
before you approach anyone with a new
product, method or process for business use is to consider both
patenting and copyright, as well as trademarks (all three are known
collectively as Intellectual Property). In particular, you need
to check whether an idea or name has already been protected, which will
make it difficult to exploit yourself.
as "The Big
Idea" by Sky One, will give you an idea of the sort of things you
need to do before launching an idea or invention. You need to
carefully consider protection against someone else stealing your ideas
and exploiting the commercial possibilities before you are able.
road of building an expensive prototype for a
product, only to find that they cannot get it protected either because
it is outside the scope of patenting, or was protected by a patent some
years previously. However, protecting a patent can be expensive
and you will need to consider whether you register the patent in
specific countries or apply for a worldwide patent.
can check the trademark register and on the
internet yourself for similar names or marks, but ideally you need some
guidance from a specialist as to whether your use of a similar name
would infringe someone else's trademark.
also beware of PR Consultants who do not always concern themselves over
the legalities of these issues before creating schemes for promoting
your products and ideas - we know of one company who underwent a large
consultation exercise on re-branding, using the advice of PR
Consultants on the names to use, only to find that none of the top 3
suggested brand names could be used due to trademark issues.
It is all
down to achieving the right balance and timing the various sorts of
intellectual property rights protection which are available, compared
to the need to seek independent views on your idea or invention and
possibly even financial investment before you can even decide if an
idea is viable.
is a register
maintained by a country of a design of a product, method or
process. The register can be inspected at any time and many of
the patents date back 200 years or more. Court action can be
taken by anyone who copies something which has been patented, normally
to remove their product from the market and to force them to pay over
all profits made.
generally need to be registered in each country where you may sell
goods, although you can apply for European and Worldwide patents
(although this is very expensive). It is therefore important that
should you wish to exploit your own idea, you should first ensure that
it is not likely to infringe any Intellectual Property rights of
another party, and secondly to determine what action is possible or
desirable to protect your idea and thus to maximise the return on your
on patents are very strict and legal advice should always be sought
where you think you may have a patentable idea or process which should
be protected. One of the patent
agents whom we have used in the past have been Swindell and Pearson and their
website offers a vast amount of information for the
budding inventor / entrepreneur, including all aspects of intellectual
property (trademarks, patents, copyrights and designs).
Due to the
costs involved, it is essential that you do not just rely on the advice
from friends and relatives and in particular, you need to undertake
some form of independent market research, even if it is only looking at
any similar products on the market, finding out their market shares,
turnover, profit and why your product would have more mass appeal.
Remember to consider the need for confidentiality agreements with any
company or individual that you may deal with prior to applying for a
patent registration - none of us wants a good idea to be exploited by
someone else before you can develop it into a commercial product.
the source of a product or service and can consist of
a name, a logo or both. A word (or name) is more likely to be
trademarked if it has a distinctive method of writing, colour or even a
smell. This is where careful logo design comes in - you need a
company logo which can become instantly recognisable and differentiate
your company from any other in a similar field.
may like to investigate registering that logo as a trademark in order
to ensure that no-one else can use it in an attempt to associate
themselves (however remotely) with your company.
Again, there is a trademark register maintained in various
and when registering a trademark, you have to specify the class of
goods or services to which this trademark will apply. However,
once registered, you can bring court action against anyone who is using
a similar stylised name or logo to your own trademark on the basis of
legal advice must
be sought before you attempt to register a trademark. It is also
a good idea to search the trademarks register when designing your own
company brand to ensure that you will not be too similar to any other
patent a product or apply for a trademark - be
careful !! There
are plenty of companies out there who watch the thousands of
being made each week and will contact you offering to help get your
market provided that you pay certain fees. These companies are
out to make
money from budding inventors and entrepreneurs and do not actually
time looking at whether your product is any good, or even if there is a
any of these services - if you are looking to
patent or trademark, then your best bet is to get some information
from dedicated patent agents.
There is a common law
protection for Design and Copyright which does not necessarily require
registration, although there are strict time limits during which the
protection operates. The protection is mainly against copying and
reproduction and in order to enforce it you need to provide evidence to
a court that you created the design or copyrighted material before the
person who you allege has copied it.
The problem here is not
in the cost of protection, but the actual proof of when the item was
created and when. One of the simplest ways to protect this is to
send a copy of the design or artistic item to yourself by recorded
delivery in a sealed envelope which can then be placed somewhere secure
as proof of the date on which the contents existed.
You should also ensure
that you have identified clearly to whom a design or copyright belongs
before creation - if you are working for someone else when you create a
design, normally that design will belong to your employer if it is has
been created in the course of your employment. Likewise, should
you employ an agency to create the material, they may stipulate that
the copyright or design belongs to them.
Passing off relates to
one entity which uses a name or logo which is likely to cause confusion
with another entity in the minds of the public. This applies
whether or not the name or logo is registered as a trademark or
design. However, to bring a passing off action against someone
else, you need to show that not only is the similarity likely to cause
confusion, but that they are proximate to yourself in either the field
of operation or the location in which they operate.
How far apart two
entities can be without fear of a passing off action is for the court
to decide, dependent on how unique the products are, the number of
other similar providers and whether the court feels that someone has
used your reputation to their advantage.
In case you need to
or defend a passing off action, it is essential to maintain proof of
when you first used your business name (for example for a company, this
may be the date of incorporation).
The simplest way of
providing proof of the date that something existed is to ensure that
you use the business name on your tax returns, and mail yourself an
envelope containing your business name, logo and address using recorded
delivery. In that way (so long as the envelope remains unopened,
there is proof that the name existed on a specific date. Many
people have also used this to protect copyright and intellectual
property rights in software, books, and designs.
off actions can be very expensive both to bring or defend (particularly
if the name used is seen as a generic word), unless you register your
Company name as a trademark. It is therefore imperative that you
seek legal advice on setting up any company or trading name.
This does mean that
however you intend to trade, once you decide to set up an internet
based business, you need to search thoroughly to find your competitors
and assess whether you may be liable to a passing off action due to the
design or name of your business / web site.
any potential name for your business against the trademarks register,
companies house and on the internet.
off through a trademark of its name
purchase a website, ensure you do not let its name lapse and renew the
web site name before it expires!
have written content look at how you will prove the date you wrote it
for copyright purposes (copyright lasts generally during your life plus
have a design for a product, you need to consider a patent - although
you will need a patent in each country where you intend to sell.
Use a good patent attorney or patent agent to help.
of companies offering to help you get your product to market - they
generally do not know whether your product is a good idea or not.
need to defend a copyright or passing off action, evidence of when you
first used the text or name is required.
in mind that most search engines now permit users to search for images,
videos and even program code - as a result the content may be viewed
outside of the context of your own website. You therefore need to
carefully consider how to utilise this to drive traffic back to your
own website (users looking for more content of a similar vein) and also
to ensure that copyright notices are embedded within the content
itself. You should look at adding watermarks, links to your site
and other tricks to ensure that you can prove ownership of the content
should someone else use it on their own web site.
only able to provide a brief overview of these very complex areas which
can have a huge impact upon your business and your ability to
trade. Therefore we would recommend that you seek legal advice as
early as possible. Further information can be found on the
Patent Office website. - this covers copyright, patent and
trademark registers and legislation.
Trade Mark Attorneys (ITMA)
Institute of Patent Agents (CIPA)