Protecting Your Best Sellers

Many companies that are careful with their tangible assets, are surprisingly lax when it comes to rights which protect invention, design and reputation known as Intellectual Property Rights. These can be used separately or together, to protect any new product. This new two part series looks at how useful such rights really are and how effectively they can be used

Published: 15 April, 2008

There is nothing more frustrating than spending many long evenings perfecting a new design which you know to be a ‘first' in the industry, only to see a very close, if not identical rip-off of the same product six months later with someone else's brand name on it.

Intellectual Property Rights (IPRs) do not actually give you any right to do anything. But they do give you a right to stop someone else from copying your product. They must be enforced against third parties, either in court or at the UK Intellectual Property Office.

Some IPRs only protect against deliberate copying. Others can be enforced against everyone, regardless of whether they were aware of your product or rights. It is important to know the difference, as many copiers will say it was an innocent mistake.

A common misconception is that if sufficient changes are made to a design, it will not be an infringement. This is wrong. If you see a new product that is selling well, don't be tempted to copy it!

It could be the subject of many different rights, all of which could be enforced against you in court. This could result in many thousands of pounds in damages and costs. The court may require you to hand over 100% of your profits - applying a pretty punishing view of what constitutes ‘profit'.

There are four main types of IPR and each has a different use:

Trade Marks

A trade mark can be anything including words, logos, packaging, sounds, get-up or slogans. It is hard to imagine a company that does not rely on them.

A trade mark such as ‘TIPTASTIC' for a drinking cup will distinguish your product from other cups on the market, allowing customers to identify it on the shelves. To protect a trade mark you should register it. Registration is cost effective and can last indefinitely. It allows you to prevent use of the mark by others. This is a very powerful asset, and you do not need to show deliberate copying.

In the UK, you can acquire rights in a mark through use without registration. In practice, however, these are very expensive to prove and enforce.

Designs

Your new product may have an appearance that differs from all other products on the market. A rocket-shaped cup would be a good example; the shape does not affect the technical function, but the appearance will be recognised by the public and therefore is a valuable asset. This could be protected with a ‘registered design'. It will last for 25 years if renewed every 5 years. It effectively creates a monopoly for you.

There are also unregistered design rights. These arise automatically when a product is first designed or marketed. But they do not create a monopoly. They only allow you to stop actual copying of your design without stopping independent creation.

Patents

A patent protects a technical function or process. There must be an ‘inventive step' from what is currently on the market. For example, a new way of sealing a cup might be patentable.

Patents are not just for the big players. Small companies can be inventive and patent protection is often less expensive than some fear, but it can be a valuable asset to any business.

Copyright

Any literary or artistic work, from a logo on the product to the text on the packaging, is the subject of copyright protection.

Copyright exists automatically when a new artistic work is created, and as the name would suggest, protects against the copying of your work only.

Michael Morse
Tel: 0113 225 8811
E mail: mmorse@godloves.co.uk

Jennifer Norris
Tel: 0113 245 2388
E mail: jkn@udl.co.uk