How to protect your intellectual property

Just what is intellectual property and why does it matter to a small business? Here is some practical advice to protect the unique aspects of your business from competitors

In the film Dirty Harry, Clint Eastwood had one of the all-time great lines from the movies: “Opinions are like assholes; everybody’s got one.” Funnily enough, almost the same might be said for intellectual property. So many individuals, especially if they run small businesses, own intellectual property and – here’s the killer blow –very many of them don’t know that they do or what to do about it.

So just what is intellectual property and why does it matter to a small business? Surely this is just something for big rock stars like Elton John and mega-rich business owners like Elon Musk.

No, sir, madam, this is for everyone. You can take that quite literally – pretty well everybody has created intellectual property at some time and very few of us have done anything to protect it, or even know why and how they should. It is potentially time-consuming, but it should be – because it matters.

Making proper protection is simply another form of insurance. It is about stopping someone else from stealing or copying such as the following: the names of your products or brands; your inventions (your ideas turned into reality); the design or look of your products; things you make, produce or write.

Here’s an example. When Ford launched the Sierra, lawyers for a little-known company called Dutton, which made kit cars, came calling. In broad terms, it said: “Ahem, did you or did you not know, or indeed check, that there is a car on the market called the Dutton Sierra?”

The number of noughts on the cheque appears to be a well-kept secret, but it would have been many. One may also assume that a lot of P45s were issued at Ford and its lawyers, marketing agencies, and so on.

Not that long ago, Apple had to pay out more than $100m for a similar legal infringement. Once again, you can but assume that a lot of heads rolled. Even for the world’s first trillion-dollar company, $100m ain’t hay.

What is included?

So what is included? It’s actually quite a lot. In essence, it is something that you create as a unique thing. It has to have physical form – an idea on its own is not intellectual property. Basically, you have to do some mental or physical work. The idea for a musical, brilliant though it might be, doesn’t count – you have to write some lyrics and music.

You own intellectual property if any of the following applies: you created something and it meets the requirements for copyright or a patent; you bought intellectual property rights from the creator or previous owner; you have a product that has a well-known and established brand name.

Intellectual property can be owned by more than one person. It can also be owned by a business. It can be sold or ownership transferred to a new owner(s). I have read, however, that agreeing a valuation on intellectual property can be extremely difficult – it is, by definition, unique, which is something the seller wants reflected in the price.

There is a good argument that says don’t bother – and it’s supported by some serious case histories. Philips made the compact cassette available to everyone who wanted to use it. Similarly, Microsoft made its software platforms available to all IT designers – a decision that has made Bill Gates $100bn.

I said above that almost everybody has created intellectual property. That is true, but they won’t own it if the creation was done in work time. In that case, the employer would own it, not the creator. If the creativity is done out of work time, it predictably becomes more complex, especially if the product created could be deemed competitive with the employer’s products – and you don’t want this whole process to make lawyers rich rather than you.

If you are self-employed, the problem goes away, but not entirely. You can have a contract effectively forced upon you that says your product becomes the property of your paymasters, and this is legal. Of course, you can refuse the contract, but good luck getting any work.

Protect your intellectual property

So you protect your intellectual property. You do this in various ways, some free, some not. As free is everybody’s favourite price, we’ll start there. Copyright and design right are both automatic. The former covers written works, art, photography, films, TV, music and web content.

Design right is more complex because it covers the shape of objects. Some of this can be the sort of rat’s nest that makes lawyers rich if two parties decide to fight. Approach with care if you believe yourself cheated.

The protection you have to apply for, and pay for, includes trade marks, registered designs and patents. Trade marks are typically for product names, logos, jingles and the like. Registered designs over the appearance of a product including the shape, packaging, colour scheme and overall appearance. Patents are right for inventions and products. That could be anything from a brand new machine, through to a machine part to a box specially designed for its purpose, as applied to one client of mine.

You won’t be surprised to learn that this is not an instant process – nor should it be. It can take up to six months; longer if your product is particularly complex. I would love to quote a ballpark figure for what this process might cost, but it’s impossible – every case is different.

Consider getting the help of an expert. Certainly find out what that would cost – it could save you sleepless nights and save money, too, in the long term. Start by looking at the IP Equip service to make clear what sort of intellectual property you have. Consider talking to a lawyer who specialises in trademarks or patents; initial consultation is usually free.

Go to the British Library Business and IP Centre, Bloomsbury, London. There are local events addressing IP – ask the British Library what is available to you. Even if you are a long way from London, I suggest it’s worth the trip.

This was last published in April 2019

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