July 22, 2021
A tech company’s value is largely found in its Intellectual Property (IP).
If you have spent months developing your flagship product or service, the last thing you want is another company stealing your concept or brand.
This means giving some serious thought to safeguarding your IP. You can protect key aspects of your brand, product, designs or inventions, such as how they are made, how they are to be used and what functions they perform. Each of these aspects are your IP, and under UK law there are many ways that you can protect it and prevent others from copying, using or stealing it.
What is Intellectual Property?
Intellectual property (IP) is, quite literally, intangible assets of the mind. So this term refers to any unique asset that you use as part of your business or its operations.
Developing good Intellectual Property (IP) is a highly valuable part your business and it can take great minds a significant amount of time to develop these assets. But once open to the public, IP can very easily be copied, which is why rights associated with intellectual property were created.
Broadly speaking, Intellectual Property rights are granted to the creators and owners of original works that are the result of human intellectual creativity. Some types of IP are automatically safeguarded by law from the moment of their creation, such as copyright. For example, if a programmer creates an original piece of software code, this code is automatically protected by copyright. On the other hand, some types of IP such as a patent or trademark require a specific grant of rights from a government agency before they can be protected by law,.
Microsoft Partners are now increasingly investing in IP development, with a headcount showing at 6% of total workforce now actively embracing IP (please see our Microsoft Partner Insights – People & Culture article for further information on this). Whether these assets are automatically protected or require registration to obtain legal protection; it is important to understand how protecting IP can protect and add value to your business and how these rights can be monopolised.
Main types of intellectual property rights in the UK
Copyright
Copyright protection automatically protects original literary works, software, web content, film, music, sound recordings, art and photography. This means that you do not have to actively take any steps to ensure that your creation is protected. For example, if you take pictures for a marketing campaign or create all your own web content, these will be protected by copyright law. If you want to demonstrate ownership of a work when it becomes available to the public, you can mark your work with a copyright notice to warn potential infringers. The first owner of copyright is the creator, and its protection will generally last until 70 years after the death of its creator. For many companies, copyright protection will apply to anything created by an employee during their employment and will be owned by the business.
Design Rights, both registered and unregistered
A design right protects the overall visual appearance and shape of a product. If unregistered, the owner of the design is entitled to automatic design rights for 15 years (from the date of creation) or 10 years (from the date of its first sale). If the design is registered, it will benefit for up to 25 years of protection, subject to the design being renewed every 5 years.
Trademarks
A trademark is a word, symbol, or key distinguisher of a business that identifies and protects your brand. Trademarks are fundamental to protecting your company’s goodwill and brand recognition. They prevent unfair competition from infringers who attempt to confuse or deceive your customers with copycat products or services. Trademarks must be registered with the Intellectual Property Office (IPO) and, once registered, willlast for 10 years until they need to be renewed. If your trademark is successfully registered with the IPO, you can place ® next to your trademark to indicate that your mark is registered. Trademarks are only protectable if they are considered by the IPO to be distinctive enough to consumers. For example, Christian Louboutin were able to register their red soled shoes as these were deemed as a distinctive symbol that identifies the global fashion brand to its consumers.
Patents
Patents are an IP right granted to an inventor that allows them to prevent anyone else from making, using, selling or importing their invention without their consent for 20 years after filing the application for the patent. If you have invented something that is entirely new, innovative or that performs a function in a completely new way, you can protect it with a patent. It is essentially a reward for the creativity of an inventor, which allows a “legal monopoly” for you to commercially use your creation however you wish to. Although patented inventions can accrue significant economic and technological value to an individual or organisation, it is worth noting that they are only granted if it satisfies the following criteria:
- It must be new (called ‘novel’ in the IP world);
- It must have an ‘inventive step’ that demonstrates some form of technological advancement compared other products on the market; and
- It must have ‘industrial applicability’ which means it must have a useful or practical application.
- Inventions relating to computer software can be patentable, on the basis that they include a technical advancement that is more than just software running on a computer in a technically ordinary way.
Trade Secrets
A trade secret can be any confidential information that is not generally known to anyone outside of that organisation. By their very nature, trade secrets provide commercial value to an organisation because they are secret from competitors, or potential competitors. In the tech industry, this provides a business with a competitive advantage that drives innovation for products such as source code to create new software. These secrets cannot be registered – they are simply kept secret or only disclosed to those that have signed a non-disclosure agreement (NDA). At Law 365, we strongly suggest that clients use an NDA when embarking on a new business relationship to keep trade secrets confidential. Without a formal agreement, it is often very difficult to prove a breach of a trade secret.
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Further reading
4 reasons smart businesses protect their Intellectual Property (IP)
Intellectual Property Assignment Agreements - What, Why, and your FAQs