Mind your own business - how to protect your designs

For any business owner or managing director, being able to recognise what constitutes your intellectual property portfolio is an essential part of protecting your competitive advantage and revenue streams. Carrying out an audit of the company’s existing assets may uncover surprising elements which have never been considered as valuable IP before.

Intellectual Property breaks down into four main areas:

• Copyright
• Trade marks
• Designs
• Patents

Each of these have a different legal focus and require a different approach.

Copyright is where an author has exclusive rights to an original piece of work. These exclusive rights allow the author to make and sell copies of the work, as well as limiting what others can do with it. To claim copyright the author or writer needs records showing the original creation of the work and should include a copyright statement that shows the author and the date.

Trade marks are a recognisable sign, design, or expression which identifies products or services of a particular organisation or product that differentiates it from those of others. There are three different types of trade marks: registered trade marks, service marks and unregistered trade marks.

Registered trademarks are registered with the UK or EU trade mark office. Service marks are used for services rather than products, and are registered in a similar way to products and unregistered trademarks have some limited cover under trade secrets or 'passing off'.

Designs refer to the characteristics of any shape, configuration, pattern or ornament, and registering the design is done in order to protect the external appearance of a product, package or article.

Patents, meanwhile are the exclusive right granted by a government authority or licence to have the right to manufacture, import, use or sell an invention and to exclude others from making, using or selling it.

So what IP should the business be considering?
The key aspect of protecting intellectual property is to ensure the organisation retains its competitive advantage and safeguards future revenues. The types of IP that the organisation should be considering include:

Copyright of software, animations, corporate videos, corporate songs, articles, brochures, newsletters and web content. Copyrights last for the original author's lifetime, plus up to a hundred years beyond his or her death. Remembering to include the original date is therefore a useful tool to reinforcing copyright.

Trade marks include: product names, logos, jingles brand names - in fact almost everything within your brand or corporate identity toolkit. The service marks also cover the services your organisation provides to prevent repetition or replication by competitors. Failure to trademark can severely impact on your brand.

Designs refer to the product appearance, packaging designs and include shape, packaging, patterns, colours and decorations.

These follow the same approach as trade marks in becoming registered.

Patents refer to equipment, inventions, technical processes and products that the company has invented, created or produced. The UK operates on the ‘first-to-file’ principle - which means that companies need to be proactive when it comes protecting their intellectual property. It is costly and timeconsuming to try and re-establish ownership of IP if you have failed to register or protect it in the first place.

For any organisation without a structured intellectual property strategy, Andrew Mackenzie, Partner at Cleveland Scott York IP, suggests businesses initially consider:

• How do I protect my brand?
• Can I get a competitive advantage with my products?
• Which countries do I need to register in?
• Where, geographically, are products or services provided under the brand now and in the future?
• Where am I manufacturing products?
• Where do I suspect copyists will operate, in the case of products?
• How do I stop competitor products looking like mine?
• Why do I need a patent, trade mark or registered design?

The business owner or managing director also needs to consider if the business is currently infringing another organisation or individual’s intellectual property. For example copying images from the web may infringe copyright law particularly if the image is not attributed or a request to use has not been made.

So why is IP important?
How essential is your brand to generating revenues? Are you able to survive if a competitor creates an almost identical product, brand or packaging that make it easy for customers to mis-buy believing they are purchasing yours? Investing in the right intellectual property protection makes financial sense.

Cleveland Scott York has worked with Breakthrough funding, a company that helps UK SMEs achieve R&D tax credits - a government scheme created to enhance and reward innovation amongst UK businesses. Could you be eligible? Click here to learn more.

For more information, click here.