Apathy about protecting intellectual property can often cause significant problems and damage to a company’s value and revenue as well as its image, writes Lee Fisher, partner and member of Morgan Cole’s intellectual property team.
Most businesses would take action if another business was squatting in their offices and trading from there free of charge, but far too often businesses allow others to freely trade off their intellectual property rights without taking any action at all.
Protection of your intellectual property rights through registration, where available, is just the first step. For any business with valuable intellectual property, the key to ensuring the longevity of those rights and the realisation of their true value lies in having clear and cohesive guidelines policing their use.
With the value of many businesses today being made up of intangible as opposed to fixed assets, ensuring that you protect the value of those assets while maximising the commercial revenue from them could become key to the success of your business.
Those assets can range from the value which lies in the brand (protectable under trade mark legislation), to strategically important and often unique products and processes (protectable, depending on their nature, by the law of patents, confidential information, copyright and designs).
Failure to protect these rights can result in the loss of potential revenue, damage to the value of your brand or the loss of the right completely. Many famous brands such as Hoover®, Sellotape® and Xerox® have been forced to act or run the risk of being struck off trademark registers because their trademarks were in danger of becoming generic terms, used to describe not only their own goods and services but those of competitors.
It is therefore essential for modern businesses, and particularly those wishing to benefit from today’s knowledge economy, to have a policy in place which not only deals with identifying and protecting those marks by way of registration, but also deals with ensuring the exploitation and protection of those rights for as long as possible.
There are five key areas which any policy needs to cover:
- Identification of the rights in any organisation are key. It is sensible to ensure that relevant staff are trained to identify where a right may exist, or at least be aware of the possibility and the need to take further advice. It is also sensible to ensure that someone takes responsibility to develop intellectual property, preferably at board level.
- Protection of rights can take the form of registration for trademarks, patents and designs. Limited protection for copyright works can be recorded by use of the symbol ©. Trade secrets can be protected by making sure they remain secret, and for all rights careful records should be kept in relation to their creation, the date they were created and the personnel involved (which can be invaluable in later court proceedings).
- Exploitation lies at the heart of realising commercial value. Businesses should consider whether the rights can be licensed to other businesses in different market or geographical areas to increase revenue. If the right is not being used, it may be worth considering selling it. Finally, if the business needs capital and there are limited fixed assets, intellectual property rights can be used as security to raise additional finance.
- Enforcement and protection of your rights through the courts should be an eventuality for which every business has contingency plans. As the right increases in value and market awareness it is inevitable that others will attempt to copy it, or even claim that it is a copy of theirs. Often, to prevent irreparable damage, court injunctions will be required, which will only be granted if the party has been seen to be taking steps to protect its right and that it has acted swiftly. If a business does not feel it will have the funds to run or defend such an action it may wish to consider putting in place IPR insurance to cover its liability.
- Review the rights of your business regularly to ensure that ideas within the business are being captured, recorded and protected where necessary. If there are rights that are not being utilised by the business consider their sale or letting registration of the right lapse, thereby saving the business unnecessary renewal fees.
Every business should spend a little time internally and with its professional advisers ensuring that a policy is in place and that steps are being taken to ensure that the policy is followed. These steps should be viewed as an investment for the future and ultimately will lead not only to an increase to the asset value of the business, but also to the revenue generated.
© Morgan Cole 2006
The content of this article in intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
