Starting a new business is a thrilling experience – your ideas, inventions, and brand are about to be unleashed upon the world! Before sharing it all, though, it is vital that you ensure that it is all properly protected.
This is where intellectual property comes in, and not only will it protect what is rightfully yours, but it will also help no end in securing that vital investment opportunity. Potential investors will always inquire about suitable agreements first and foremost when being presented with a clever new proposition, and this is precisely why. Without the proper protection, they can’t invest, because the whole concept is rendered worthless and open to free exploitation by others. The correct documentation also proves ownership of the concept, that it is an original idea, and not simply a reflection of a similar product or service already available.
Copyright protects materials you have used skill, effort or judgement in expressing, representing, or compiling, and prevent others from copying, adapting or dealing in copies of it. To put it in simple terms, an idea alone has no protection but the moment you express that idea in some way – in writing, as an image, recording etc. – copyright protects it. For product designs and prototypes, the unregistered design right generally exists alongside copyright to provide further protection. Copyright is an automatic right and applies immediately to work upon creation. There is no such thing as a requirement to ‘register copyright’, and don’t let anyone try to convince you otherwise! It is, however, worth noting that employees’ terms of contract should confirm work completed on behalf of the employer becomes the employer’s copyrighted content. This is the default position under the law, but it doesn’t hurt to confirm it in writing. Similarly, take care when agreeing contract terms with freelancers and other contractors as by default, any copyright in material they create will be theirs – you will want to make sure that the contract requires the contractor to assign that copyright to you. So, you don’t register copyright, but there are some things you can do to help back up your claim that a particular work was created when it actually was: consider keeping a record of where and when the copyright work was created and by whom, and depositing along with a copy of the work with your solicitor or bank. When sharing copyright work make sure it is marked, warning of infringement with ©, year of publication and your company’s name. Most importantly, if you are allowing others to use your copyright work, consider doing so under a licence agreement that clearly sets out what they can and cannot do with it.
IP law protects your commercial and trading image; your brand or style by means of trademarks, which can be unregistered or registered. Unregistered trademarks are just that – there are no formal registration requirements. While there is less formal protection for an unregistered mark, it can still be protected through a passing off action. Provided you can show that you have built up goodwill in your mark (i.e. people will associate that mark with you, your goods, or services) and that someone else is doing something that will lead people to believe that their business, goods, or services are in fact yours, you should be in with a chance. That being said, a registered trademark is often the better way to go.
A mark or sign may be registered as a trademark if it can be represented graphically and is capable of distinguishing the goods or services in respect of which it is used. Such a mark or sign may include words, logos, colours, and sounds (or a combination of these). Many have tried to push the boundaries with things like packaging shapes and even smells, but don’t expect to get too far. While it may not be technically impossible, a number of big brands have been unsuccessful in this regard.
Before applying for registration, it is important to be sure that your mark is distinctive, non-generic in nature, and does not relate too closely to characteristics of your goods or services. These are the central points, but it is important to be aware of other non-starters including descriptive marks, unlawful or immoral marks, and applications to register marks made in bad faith. If in doubt, check with the UK Intellectual Property Office (“the IPO”) before completing your application. Another word on packaging: packaging is not registerable where the shape of that packaging results from the nature of the goods, if the shape is necessary for a technical reason, or if the shape gives substantial value to the goods. If you want to protect your packaging, consider registering it as a design (for which, see below).
What about other people’s trademarks? When it comes to registration, it will also be refused if your mark is identical to an earlier mark for similar goods or services or if the mark is similar to a mark for identical or similar goods or services and confusion on the part of the public may arise; or the mark is identical or similar to an earlier mark and such registration would be detrimental to, or would take unfair advantage of the earlier mark.
As with other IP rights, you can allow others to use your trademark under a licence (or use their trademark under a licence yourself, of course). Always be sure to use a proper licence agreement to do this so as to avoid any doubt on either side over what can and cannot be done with your mark.
To be continued…….
By Iain Mackintosh, founder and owner of Simply Docs