WHAT’S IN A NAME?
Intellectual property rights such as trade marks, copyright and the like can be incredibly valuable and give savvy businesses the edge, or stop them going over it. However, this does not stop them from often being overlooked until it is too late.
To give you a gentle prompt, we asked Ben Clay of Lupton Fawcett’s intellectual property department to give us ten tips to keep in mind to protect rights and avoid costly mistakes.
1. Own what you pay for. If you commission an external agency to create materials for you, such as website content or photos for marketing, they will be the legal owner of the copyright unless you both agree otherwise. As a copyright assignment needs to be in writing and signed, be sure to have a written contract giving you the rights you have paid for. Adopt a similar approach for employees too. Whilst anything done in the course of employment will generally belong to the business there can be arguments about whether a particular work falls within the scope of this, so it is best to be safe and add contractual provisions to clarify things.
2. Make sure it is your business which owns registered rights. Whether it is the external agency which arranged your domain name or a director registering something in his or her personal name rather than the company’s, not registering rights in the name of the business could cause costly problems for it further down the line in many ways. If you find registrations which are in the wrong name, assign them now before you need to enforce them and whilst you are still friends with the owner.
3. Look before you leap. When launching a new brand, first make the effort to check that nobody is already using it or you may well end up wasting a lot of time, effort and money.
4. Register your trade marks. Not only do you get enhanced protection for your branding, but you reap indirect benefits of demonstrating to customers that your brand is substantial and well run and you have something to show to potential investors too.
5. Register other rights too. Not all intellectual property rights need to be registered (for example copyright and database rights arise automatically), but registering designs and patents can give your business effective monopolies and consequently a massive advantage in the marketplace.
6. Sssshhhhhhh. If you do have something capable of being patented, do not make it public before applying for the patent or you will have scuppered your own application. Similarly, a design can only be registered if it is new, but at least you have a one-year grace period from your own disclosure to make the application.
7. Use confidentiality agreements. Businesses will need to divulge confidential information from time to time, but keep control of where that information can then be used otherwise you may find your competitors benefitting from it.
8. Enforce your rights. Give your business the competitive edge it is entitled to by using its intellectual property rights to protect what it has created and stop others taking unfair advantage. Don’t be too gung-ho though, as unjustified
threats of infringement can give the recipient a claim against you in return.
9. Don’t tread on anybody else’s toes. Just as important as maximising the benefits of intellectual property rights is
avoiding the damage which comes with infringing somebody else’s rights. Don’t ‘borrow’ a photo for your website or
marketing materials from somewhere without permission, don’t try to make people think you are another business, and don’t copy the design of somebody else’s fancy new product.
10. Ask a lawyer. Intellectual property rights can be full of dangers and lost opportunities even when they appear
to be straightforward, let alone when they concern more complicated scenarios such as joint ownership or licensing
arrangements. A little advice from somebody who knows the playing field can go a long way to maximising your rights and avoiding mistakes which come back to haunt you in the future. Just as usefully, lawyers can help you tread fine lines to avoid infringing the rights of others, such as by explaining how to run a comparative advertising campaign safely.