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10 November 2009

Protect your most valuable asset: intellectual property

Now more than ever, companies are realising the importance of protecting their intellectual property (IP). Television programmes such as 'Dragons' Den' have highlighted how important it is not just to have a good idea, but to have a good idea that other people can't copy, thereby giving you the edge over your competitors.

Protecting your IP is a keystone in starting a new business - in fact, IP can be one of the most important assets a business owns! For example, this year, Interbrand valued the Coca-Cola brand as the world's most valuable brand worth almost US$69bn - an amount that doesn't include a single bottle of Coca-Cola, or even one brick in a Coca-Cola factory.

For many people however, it's not clear what exactly IP is, or how it can be protected. Part of the problem is that it's not a specific term, rather an umbrella term that embraces a variety of rights, including patents, trade marks, registered designs, design rights, copyright and trade secrets.

Patents protect inventions, typically new products or processes. Traditionally, inventions have been mainly mechanical, electrical or pharmaceutical in nature, but, increasingly, patents are being granted for biotechnology and computer-software related inventions.

An invention doesn't need to be radically innovative to secure patent protection but it does have to be novel and non-obvious when compared to what's already known. The golden rule of patents for any start-up business is that the invention must be kept secret until after a patent application is filed - any prior disclosure of the invention, if proven, could invalidate any patent granted and therefore, your monopoly in that invention.

It's therefore particularly important for companies involved in innovation to conduct regular reviews to ensure that appropriate protection is in place before their new products or processes are revealed.

Trade marks are the brand names, logos, symbols, slogans - even smells and holograms - by which companies develop a market identity for their products and services. They enable customers to identify your goods and services, and to distinguish them from those of your competitors.

Trade marks effectively encapsulate the reputation or goodwill of a business and can be the most valuable asset of the company. Many people are surprised to learn their company or business name registration does not actually provide them with any legal protection or rights at all - neither does the registration of a domain name.

A registered trade mark is the only instrument which provides a statutory and exclusive right to the use of a trade mark. The owner of a trade mark registration can prevent unauthorised use of this, or of a confusingly similar one, in relation to the same or similar goods or services.

Another important point to note is that it's very important before launching or using a new trade mark to do a clearance search first - to make sure the trade mark is free for your use and/or registration. Otherwise, you run the risk of infringing someone else's trade mark rights.

Registered designs protect the novel and ornamental visual aspect of a product which possesses individual character. There is no requirement for the design to be visually appealing and so it's possible to protect the appearance not only of aesthetic items, such as a vase, a shoe or a lamp, but also of industrial items, such as machinery, or mobile-phone keypads (so long as the visual appearance is not a result of the function of the product).

It's prudent to make design applications before the design is made public. Design registration is now more attractive than ever since protection can be obtained across the European Union through a single and relatively inexpensive application. A registered design can be used to prevent others from using the design without the owner's permission.

Design right is an unregistered right of limited duration that protects any original and non-commonplace aspect of the shape or configuration of a product except those whose shape is dictated by necessity. Unlike a registered design, these design rights exist automatically from when the design is recorded in a design document or in a product featuring the design. So, if you create a product with a particular shape or appearance that is original and non-commonplace, it may automatically benefit from this type of protection.

Copyright automatically exists in respect of various literary or artistic works, including text, brochures, artwork, audio recordings and computer-program code. To enjoy copyright, a work must be original in that it must result from the creator's or author's own efforts.

Relying on design rights or copyright can be difficult since these rights are only infringed if a third party is proven to have copied the work in question - an identical design or work created independently would not infringe design right or copyright.

Trade secrets include anything, typically data or know-how of commercial benefit that is held confidentially. Often such information is kept secret because it can't be protected by any other means, for example a recipe for a soft drink. In other cases, the information is kept secret simply because that is deemed to be the best way to protect it.

Almost every business enjoys some form of IP, whether it be in the name or logo of the business or in a new product or process. These are important assets of any business and should be properly protected. Regular IP reviews are recommended to ensure that appropriate steps are taken before it is too late.

Hazel Tunney, FRKelly

(Published in www.bizstartup.ie, November 2009)