This article was originally published in The Scotsman and can be viewed at www.scotsman.com/news/opinion/meena-murrin-intellectual-property-protection-an-essential-1-4190793.
In the first episode of the latest series of BBC’s Dragons’ Den, only one pitch specifically mentioned intellectual property (IP) protection. That pitch attracted investment from three of the five Dragons and serves as a reminder of how crucial IP is for businesses looking to secure investment. Having an IP portfolio provides a straightforward signal to potential investors that a company is more likely to have a sustainable competitive advantage that will allow it to succeed in the marketplace.
Simply put, IP relates to the ownership and protection of ideas and typically includes trade marks, patents, designs and copyright. Businesses often say they want to “patent their logo” or “copyright their company name”. However, the terms trade mark, patent and copyright are not interchangeable and it is important to know the distinction between these various forms of IP.
On a basic level, patents protect how things work, trade marks protect what things are called and where things come from (identifiers of origin), designs protect what things look like and copyright protects original works of authorship, such as poetry, novels, movies and songs.
Trade Mark and Patent Attorneys are specialist lawyers, specifically qualified to advise on IP law in the UK and further afield. They will offer strategic advice on the clearance, registration, enforcement and exploitation of IP. In contrast, IP Solicitors will usually be English or Scots law-qualified, and will deal with validity and infringement matters, litigation and alternative dispute resolution. They will also advise on a range of commercial matters including the licensing, transfer and securitisation of IP.
Trade marks are a key component of a brand. For many start-ups and SMEs, a strong brand identity is essential in establishing a market position and differentiating from competitors. Customers recognise the names, logos, slogans, colours, shapes and even sounds, and in turn choose to purchase your products or services rather than those of your competitors. These powerful assets can be protected by way of trade mark registrations – and preventing other businesses from trading on your good name helps protect you against unfair competition.
There exists a common misconception that you cannot protect a word in common usage as a trade mark. We regularly hear this discussed in the media when a celebrity applies to register song lyrics or even their own name. The fact that English words, when applied arbitrarily or suggestively, can function as trade marks sometimes comes as a surprise. People question the free speech impact and ask how someone can obtain exclusive rights to use an everyday word or name. So long as the words are not too descriptive, and are distinctive enough to differentiate one business from another, common words can function as an identifier of commercial origin. Registering those words as trade marks confers a monopoly right on the owner to use those words in relation to certain goods or services. APPLE is and will remain a common name for fruit, so is unlikely to be registrable as a trade mark for a greengrocer. However, the right to sell computers and electronic devices with that name is restricted to Apple due to its trade mark registrations. The word BREXIT has been used thousands of times in the past few months in relation to politics, but since October 2015 it has been registered as a trade mark in the UK in relation to various goods and services including mobile phone cases, mugs, shoes and advertising. For celebrities, trade mark registrations are one of the means by which they can seek to leverage catchphrases and names to diversify their revenue through perfume, clothing and other goods.
Additionally, owning a trade mark registration in the UK does not mean that a mark is protected worldwide. If overseas expansion is part of your strategy, you should clarify that you are free to use and register your trade mark in each market of interest. Trade Mark Attorneys can carry out clearance searching to help determine the risk of entering new markets and to advise on potential issues in certain countries, eg possible connotations of a trade mark in different countries.
Finally, one of the most common misconceptions is that IP protection is expensive. While there are costs involved, it is certainly cheaper to get the right advice from the outset rather than risk having to fight infringement action, and possibly incur the costs of rebranding or recalling products later on. An Attorney can help to tailor a filing strategy to your business so that your budget is allocated effectively – and ensure you are in the best shape for any dealings with dragons.