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"We managed to avoid a potential law suit when as part of a rebranding exercise, we discovered the new brand would be too similar to an existing trademark"

P. Ingle,
South Staffs HA





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How to Safeguard Your Intellectual Property

One of the important steps 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. 

Programs such 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.

Many people have gone down the 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. 

Trademarks are equally important - you 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.

You should 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.

What is a Patent?

A patent 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. 

Patents 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 investment.

The rules 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.

What is a Trademark?

A trademark is used to identify 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.

You 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 countries 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 passing off.

Again, 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 supplier.

Be Careful!

If you do decide to patent a product or apply for a trademark - be careful !! There are plenty of companies out there who watch the thousands of applications being made each week and will contact you offering to help get your product for market provided that you pay certain fees.  These companies are out to make money from budding inventors and entrepreneurs and do not actually spend any time looking at whether your product is any good, or even if there is a market for it.

We do not intend to provide any of these services - if you are looking to register a patent or trademark, then your best bet is to get some information from dedicated patent agents.

What About Copyright?

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.

What Is Passing Off?

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 bring 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.

Unfortunately, passing 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.

Top Tips

  • Check any potential name for your business against the trademarks register, companies house and on the internet.

  • Protect your own business against passing off through a trademark of its name and logo.

  • If you purchase a website, ensure you do not let its name lapse and renew the web site name before it expires!

  • If you have written content look at how you will prove the date you wrote it for copyright purposes (copyright lasts generally during your life plus 50 years).

  • If you 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.

  • Beware 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.

  • If you need to defend a copyright or passing off action, evidence of when you first used the text or name is required.

  • Bear 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.

Useful Links

We are 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 following links:

The U.K. Patent Office website. - this covers copyright, patent and trademark registers and legislation.

Institute of Trade Mark Attorneys (ITMA)

Chartered Institute of Patent Agents (CIPA)

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