A lot of founders when they first start a business do not see protecting their intellectual property as a priority. However, if your business is substantially based on your trade secrets it may be necessary for you to do so. If it gets stolen and it is not protected it would be extremely difficult to get any kind of remedy or compensation for it. There are different ways in which you can protect your work and secrets these are primarily through patents, copyright, and trademarks.
What is Intellectual Property?
The specific kind of protection that you will need will depend on what it is you want to protect. Protection is especially important if you start hiring employees in your company and they are being exposed to all of the trade secrets and they haven’t signed a non-disclosure agreement. If they are under no legal obligation to keep your trade secrets and your work is not protected there is nothing stopping them stealing your ideas and starting a company of their own and since you haven’t protected your product or service it will be hard to provide evidence that they are legally liable. Following are some of the ways in which you can protect your intellectual property.
This is most likely one of the simplest ways to protect your work. Copyright automatically arises with certain pieces of work. Some works, for example, are automatically copyrighted for the creator’s life plus up to 70 years.
In addition, there are two types of rights when it comes to copyrights. The first being an economic right which is the right to use work for commercial purposes such as to sell, license, distribute, reproduce, adapt, lend or perform a work. The other right is the moral right which is the right to protect the non-economic interest in work. There are 4 areas for copyright that are recognised within the UK. These are literary, dramatic, musical and artistic work.
Works that are protected by copyright include;
- sound and music recordings,
- film and television recordings,
- Software, web content and databases
- Layout published editions of written, dramatic or musical works.
Elements of a valid copyright
In order to create a valid copyright the work must be original and within a fixed medium such as written down or recorded. Moreover, the creator of the work should be identifiable. Thus, a copyright of this sort can last for a minimum of 50 years and sometimes even up to 70 years.
An example demonstrating copyright infringement can be seen when photographer Art Rogers took a photo of a couple holding a line of puppies to sell on greeting cards and similar products.
Jeff Koons was creating an exhibit on banal everyday items and came across Rodgers’ photograph to create a set of statues based on the images. Koons sold these structures making a significant profit, for which he was sued by Rodgers for copyright. Koons responded by claiming the use of parody. The court came to the decision that the pictures were too similar and that a ‘typical person’ would see that they were a copy.
Consequently, Koon’s defence was rejected but he was able to use a more generic source to make the same statement without copying Rodgers work. He still had to pay a settlement to Rodgers. This case signified issues within the art world in relation to the issue of appropriation art and artistic property.
Lastly, although copyright arises passively it has been seen as beneficial many times especially when it comes to protecting intellectual property.
A patent is a legally binding agreement that shows that your company has come up with and has the rights to a certain product or service. This applies to inventions, products, and machines. Patentable products must be things that are made or used, new and inventive. A patent increases the value of your company as it provides you with a unique selling point.
To secure a patent there is an online application form which can be filled out through the World Intellectual Property Organisation (WIPO), however, thereafter it can take up to five years for your product to be patented.
Furthermore, there are a number of issues that highlight the vast patenting issues face by companies around the world. For example, Hitachi Global Storage Technologies filed a lawsuit in the United States against there Chinese competitor GS Magic for selling patent-infringing products in the U.S.
Another example is when Cisco System Inc sued Huawei Technologies for violating several intellectual property rights, this resulted in an agreement by Huawei to change its router and switch products. This meant that Huawei had to make major changes to their products which impacted their sales.
Thus, usually, patents are kept hidden from the public by the WIPO for a certain amount of years. However, when your product gets patented no one will be able to take it and call their own.
Trademarks are used to distinguish a business’s goods and services from its competitors.
What can be trademarked?:
A trademark includes a distinctive and original mark or a non-descriptive word or term.
A registered trademark lasts for 10 years. If an infringement occurs then the trademark provides assurance for legal action.
A trademark can be licensed and sold to others. As a business, if you choose not to license your trademark then you have an exclusive license which helps you to build and protect your business’s brand and reputation.
To get a trademark first you need to see if it is registered. If it is unregistered then you have to choose a trademark class to register it in. The UK IPO has an online application and a paper application that you can choose from. There is an additional fee for each additional class.
Registering a name or domain name does not create or register a trademark.
Hence, an example of trademarking problems can be seen when Volkswagen purchased an automobile design from Rolls Royce and were unaware of the Rolls-Royce trademark because it was a non-transferable license. Volkswagen purchased the plant, machinery and automobile designs, yet this did not include the trademark, so they could not build the car.
Consequently, trademarking is key in building a reputable brand.
Industrial designs can be referenced to ornamental or aesthetic aspects. They may consist of three-dimensional featured products or two-dimensional features such as patterns, lines or color. The ownership of a registered industrial design or design patent prevents a third party from making, selling or importing articles and having copies of your design for commercial purposes.
Industrial design protection applies to a wide range of products, such as packages, containers, furnishing, household goods, lighting equipment, jewellery, electronic devices, and textiles. This may also be relevant to some graphic symbols, graphical user interface, and logos.
Furthermore, industrial designs need to be registered as either a ‘registered design or under patent law as a ‘design patent’. The protection lasts for 10 years. Furthermore, these rights are territorial and are limited to the country that the protection is granted in.
Industrial rights are used to protect appearances or aesthetic features of a product, but will not protect their technical or functional features. In those cases, a patent will be needed to provide the necessary protection. For industrial designs, the product will need to be a novelty or original, which is generally considered to be something new and will not have previously been disclosed.
Hence, industrial rights provide an exclusive right to the product for at least 10 years. It also strengthens the company’s brand as it provides the company with a unique selling point which is more attractive to consumer, as no other competitor will have their product. This can increase the market value of the product and company.
In conclusion, an industrial design can protect the aesthetic features of your product.
Geographical indications (GI) are used on products with specific geographical origin, qualities and the reputations from such origins. In order, for this to be applicable it must be proven that the product originates from a certain place with the qualities, characteristics or reputation from that origin. There should be a clear link between the product and the original place of production.
Thus, protecting this gives you the right to prevent it from being used by a third party whose product does not meet the specified standards. Yet, this will not enable the holder to prevent someone from making the product by using the same technique. It provides a right over the sign which constitutes an indication. These are often used for products such as agricultural products, foodstuff, wine, spirits and other industrial products.
There are three ways to protect a product under geographical indications;
A). Sui generis system – special regimes of protection;
B). Using collective or certificate marks, and
C). Methods focusing on business practices – administrative product approval schemes
Often these are registered without a certain time period and unless the registration is invalid remain permanent, with the exception for the use of collective and certificate marking which lasts for 10 years.
In order to register you need to have a good identifiable link to the geographical origin. This may be determined by a given quality, reputation or other characteristics due to the geographical origin.
Are there any obstacles to obtaining a geographical indication?
The lack of recognition of geographical indications under law can be considered as an obstacle.
Obstacles from a legal perspective are;
- Issues with a prior mark
- Geographic indication of a generic character
- A homonymous geographical indication which may be seen as misleading the product’s true origin (homonymous indication are those which sound the same or spelled same but in fact have different origins such as different places or countries).
- Indications name being a plant variety or animal breed
- Lack of protection of GI in its country of origin
There are no current international or world geographical indications due to their territorial nature yet to do one abroad there are four means of gaining protection;
- Obtaining protection directly in the jurisdiction concerned – many countries require the country of origin to have a GI.
- Taking advantage of bilateral agreements agreed between countries – these are bilateral agreements concluded between two countries on basis of reciprocity. Limitations to economic sectors or products such as wine and spirit drinks form part of a wider trade agreement.
- Through WIPO Lisbon system for the International Registration of Appellations of Origin – they offer men to obtaining protection for the appellation of origin which is protected in one member state in territories for other members, which can be done through an ‘international registration.’
- Through the Madrid System for the International Registration of Marks – avoid filing a trademark application and file a single application using WIPO’s Madrid system.
Hence, if you are keen on stating that your product is from a certain place then it may be important to get a geographical indication.
On a grander scale, intellectual property has been the source of many disputes even at a governmental level. Most recently China has been accused of stealing approximately 250 billion dollars worth of trade secrets. The U.S. is beginning to impose tariffs $50 billion worth of Chinese exports as a response to ‘theft’ of the U.S. technology and intellectual property.
Thus, intellectual property affects everyone whether you are a startup business or a well-established association.
This is why it is crucial to protect your intellectual property.