The intellectual property of any organisation is one of its most valuable assets; this is particularly important for creative industries and should be guarded judiciously to avoid theft or taint. Intellectual property, the catch-all term for the intangible asset of your idea, invention or creation, ownership of which allows for the economic exploitation of all aspects connected to the asset or assets should be clearly defined and protected from the onset of the business.
Donald Trump has received a flurry of cease and desist letters from a wide range of songwriters and performers making it crystal clear that they have not given permission nor allowed their songs to be licensed to the Trump political camp for use at any of his political rallies. Brian May, Neil Diamond, R.E.M., Adele, Rihanna, Guns 'n' Roses, Aerosmith, Sir Mick Jagger, Sir Elton John, as well as the estates of Tom Petty, George Harrison and Prince, to name but a few of the artists that have complained.
Nick McEwen, an associate in the corporate and commercial team commented "one thing Donald Trump has a very clear understanding of is branding, as, since his repeated financial losses in the 1990s, he focussed his business interests on selling his "Trump" brand where it is attached it to projects owned and operated by others; for example golf courses, hotels and casinos. His repeated attempts to use songs without the permission of the writers and performers is a serious violation made infinity worse by the political associations which the artists may consider cause serious damage to their reputations" he further commented, "as the UK approaches the end of the Brexit transmission period businesses and organisations would be wise to double-check that their intellectual property, presently protected under the EU, is confirmed when the Intellectual Property Office(IPO)converts almost 1.4 million EU trademarks and 700,000 EU designs to comparable UK rights at the end of the transition period."
Giambrone's corporate and commercial team strongly urge that a tight control is maintained over all aspects of intellectual property with particular reference to monitoring any misuse that impacts on the status and standing of the brand or illegally obtains revenue that you and only you, as the rightful creator, and no-one else, should receive. Litigation to reclaim your own brand and intellectual property assets can be a challenging route, also a third party that breaches your rights can do untold reputational damage.
In the event of a competitor or former employee setting up a rival business using your branding and your own ideas or any other aspects of your unique products without express permission, licensing agreement or any entitlement is perpetrating a white-collar crime. The Crown Prosecution Service can consider action under the following:
Copyright Designs and Patents Act 1988
Trade Marks Act 1994, Section 92
Fraud Act 2006
Video Recordings Act 2010, Sections 9 to 14
Proceeds of Crime Act 2002
London 2012 Olympics and Paralympic Games legislation (or similar passed to accommodate global events)
Common-Law offence of conspiracy to defraud
Registered Designs Act 1949 as amended by the Intellectual Property Act 2014
In practice, depending entirely on the nature of the breach, the first step would be a warning to immediately "cease and desist" all activities considered to be breaching the intellectual property rights of the rightful owner. In the event of a dispute, a legal action at the High Court and a claim for compensation would be the best option thereafter. Failure to send a strong message to protect your intellectual property can result in losing control of your own invention or creation and the consequential economic benefit.
History is littered with stories of losses from Tesla, who was finally acknowledged as the inventor of radio in his claim against Marconi after his death in poverty; to the photographer, David Slater, who tried to bring a copyright claim against individuals who had downloaded and circulated an image from his website that had been taken by a macaque monkey using Mr. Slater's camera, who not only lost the claim he then found himself facing a counterclaim filed on behalf of the monkey.
Originally published 07 July, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.