Protecting intellectual property

All businesses have intellectual property (IP), regardless of their size or sector. IP can mean a brand, invention, design or other kind of creation, and it can be legally owned.

Your IP is likely to be a valuable asset. It could include the name of your business, the products or services you make or provide, or the written or artistic material you create.

Securing and protecting it could be essential to your business’ future success, so it’s vital to understand your rights and how the law can help you.

This guide explains the importance of conducting an audit of your business’ IP. It sets out the different kinds of legal protection available for IP available (including patents, trade marks, design rights, registered designs and copyright) and explains the range of things you can do to protect and manage your IP rights.

---

---

The importance of protecting intellectual property

Intellectual property (IP) rights are valuable assets for your business – possibly among the most important it possesses.

Your IP rights can:

• set your business apart from competitors
• be sold or licensed, providing an important revenue stream
• offer customers something new and different
• form an essential part of your marketing or branding
• be used as security for loans

You may be surprised at how many aspects of your business can be protected – its name and logo, designs, inventions, works of creative or intellectual effort or trade marks that distinguish your business can all be types of IP. You can find out about IP on the Intellectual Property Office website- Opens in a new window or download guidance on IP [opens in a new window].

Some IP rights are automatically safeguarded by IP law, but there are also other types of legal protection you can apply for.

To exploit your IP fully, it makes strong business sense to do all you can to secure it. You can then:

• protect it against infringement by others and ultimately defend in the courts your sole right to use, make, sell or import it
• stop others using, making, selling or importing it without your permission
• earn royalties by licensing it
• exploit it through strategic alliances
• make money by selling it

The Intellectual Property Office’s IP Healthcheck tool can create a tailored report for you, recommending ways in which you can protect and exploit your IP rights. Find out how you can protect and exploit your IP by taking the IP Healthcheck with the Intellectual Property Office.

You can also find specialist IP business advisers and support products on the Intellectual Property Office website- Opens in a new window.

See our guide on intellectual property crime and your business.

---

Intellectual property management – conducting an audit

The first step to protecting and exploiting your business’ intellectual property (IP) successfully is carrying out a systematic intellectual property audit.

To carry out an audit, look closely at your business to:

• identify where IP is used
• find out who owns the IP rights
• assess the value of the IP

This won’t always be straightforward. Remember that your IP doesn’t just reside in patents you hold or trade marks you have registered. You also need to consider items such as any bespoke software, written material, domain names and customer databases.

Key questions an IP audit should raise are:

• Is my IP protected?
• Am I infringing anybody else’s IP rights?
• Am I fully exploiting my IP?

Using a logbook to manage your IP

It can be helpful to record all research, notes, designs and meetings related to your ideas in a dated, tamper-proof logbook, with witness signatures where appropriate. This can serve as a powerful tool, helping you identify and protect your IP later on.

For resources to help you identify your IP, see the page identifying and valuing assets in our guide on identifying, protecting and transferring assets.

Find out about IP on the Intellectual Property Office website- Opens in a new window.

---

Getting legal protection for your intellectual property

There are four main ways in which the law provides protection for your intellectual property (IP).

Patents

Patents protect your inventions for a set period. You must apply to the Intellectual Property Office for a patent. You can apply to register a patent online with the Intellectual Property Office. If you require further information see our guide on how to get patent protection for your business.

You can only patent an invention if no one has done so before you. To see if there is an existing patent you need to carry out a patent search. Find out about patent searches on the British Library website- Opens in a new window.

Flexible and user-friendly patent litigation procedures exist to help patent holders defend their rights.

Find information on the patents rules on the Intellectual Property Office website- Opens in a new window.

There are 13 patent information centres (also known as Patent Libraries or PATLIBs) in the UK, where you can access local IP information. Find patent information centre details on the Intellectual Property Office website- Opens in a new window.

Trade marks

A trade mark is the distinctive way in which your business’ goods or services are represented – in the form of slogans, symbols, words, logos, brand names or shapes, for example. See our guide on how to use trade marks in your business.

You can take legal action to prevent someone else using your trade mark if you have built up sufficient trading reputation and goodwill in it – but this can be difficult to prove. For added protection it’s a good idea to use trade mark registration to safeguard your trade mark.

You can apply to register a trade mark or search to see if a trade mark is already registered.

Design right and registered designs

Design right gives automatic but limited protection for the appearance of three-dimensional objects. A registered design gives added protection and applies to both two-dimensional and three-dimensional objects. See our guide on design right and registration.

You can get information on design on the Intellectual Property Office website- Opens in a new window.

Copyright

This is automatic protection afforded to original literary (including software), artistic or dramatic work and sound recordings that are the result of intellectual effort or creative skill. This could cover your website’s content, technical drawings or instruction manuals, for example. See our guide on copyright for your business.

You can get information on copyright on the Intellectual Property Office website- Opens in a new window.

---

Assistance with intellectual property protection

Intellectual property (IP) protection can be an important part of ensuring your business’ success, so it’s essential that you get it right. Mistakes can be time-consuming and expensive. They can even result in your business’ failure.

IP protection is a complex legal area and getting help is often sensible.

Sources of IP assistance

• The Trade Association Forum. Find your trade association on the Trade Association Forum website- Opens in a new window.
• The Intellectual Property Office. Contact the Intellectual Property Office Information Centre on Tel 0300 300 2000 or find information on IP protection on the Intellectual Property Office website- Opens in a new window.

Specialist legal advice is also available. Patent attorneys are legally qualified in all aspects of patents, trade marks, design and copyright law. They are represented professionally by the Chartered Institute of Patent Attorneys (CIPA). Find further advice on IP protection and the work of patent attorneys on the CIPA website- Opens in a new window.

Similarly, trade mark attorneys are legally qualified in trade mark, design and copyright issues. They are represented professionally by the Institute of Trade Mark Attorneys (ITMA). Find advice on trade mark attorneys on the ITMA website- Opens in a new window.

Protecting your ideas overseas

IP protection is territorial, which means if you have registered protection in the UK it applies only within the UK. However, the majority of countries have similar laws relating to IP and you can seek protection in other countries. See our guide on intellectual property protection overseas.

---

Intellectual property rights and your employees

It’s likely that your employees will create work that carries intellectual property (IP) rights.

This does not just apply to those who are developing inventions in a research and development department. Staff could also be creating potentially valuable IP if, for example, they’re compiling databases, writing marketing material or producing training brochures.

The good news is that rights to IP created by employees generally belong to the employer.

Showing that a member of staff has an employment contract is usually enough to prove you own all IP rights. But it’s a good idea to state the position explicitly in separate clauses of employees’ contracts.

This prevents any confusion arising – perhaps over work created outside office hours or as a by-product of specified work.

You may also want to ask employees to record information relating to any innovative work they do in a logbook.

Unless otherwise explicitly stated in their contracts, employees will retain the moral rights to any literary, dramatic, musical or artistic works created as part of their employment.

This means they can object to distortions of their work and retain the right to be identified as its author, but have no economic rights over it. If you want to obtain the moral rights in your employees’ work you must state this clearly in employment contracts.

Your employees may also have access to sensitive information about IP. It can make good business sense to include confidentiality clauses in your employment contracts. See our guide on the employment contract.

You may want to seek legal advice when drawing up contracts. You can search for a solicitor on the Law Society website- Opens in a new window.

---

Intellectual property and freelance contractors

You should take steps to ensure your business owns any intellectual property (IP) rights in work created for you by freelance contractors.

You have an implied legal right to use IP rights in work you have commissioned from freelance contractors for the purpose it was originally intended for.

However, unless you take steps to assign the IP rights to your business you will neither own them nor be able to make additional use of them.

For example, unless you take adequate precautions you could find your business would be unable to use a successful advertising slogan across all its promotional material if the phrase in question was coined by an agency that agreed to produce the slogan for a one-off newspaper campaign only.

You should therefore set out, in a written agreement, who will own, control and use the IP rights of all work created before a contractor produces anything for your business.

A clause assigning moral rights to your business could also be beneficial. Unless you do this, your contractors will retain the right to object to distortions of their work as well as to be identified as the author.

Remember that IP rights may reside in promotional material, bespoke software – such as databases and website content management systems – and other creative work which may be undertaken by freelance contractors.

You may want to seek legal advice when drawing up agreements with contractors. You can search for a solicitor on the Law Society website- Opens in a new window.

---

Prevent intellectual property infringement

If your ideas get into the wrong hands before you have taken action to protect them, you could find your intellectual property (IP) rights seriously compromised – or even lose them entirely. It’s therefore very important that all your business’ material in which there are IP rights is kept secure.

This is essential before IP protection has been applied for – or registered – as any disclosure could jeopardise your claim to originality. For certain creative works it will also be important afterwards because enforcing your intellectual property rights against infringers can be a time-consuming and expensive process.

Basic steps you can take to avoid IP infringement include:

• asking employees – and third parties to whom key information must be disclosed – to sign confidentiality agreements
• keeping important hard-copy information locked up

Take special care when trying to sell or license an invention, idea or design to an agent, manufacturer or potential partner, even if registration is complete. Apart from a confidentiality agreement, if you have not protected your idea by applying for a patent, trade mark or design, post a dated copy of your idea to yourself using recorded delivery and lodge the unopened envelope and postal record with your bank or solicitor. Note that this only shows that you were in possession of an idea on the date shown, but will not prove that you own it.

Information stored electronically, particularly on computers connected to the internet, needs protection from both lapses in security and IT disasters.

You should:

• ensure sensitive information is kept on password-protected areas of your system
• install anti-virus software and keep it up to date
• install firewalls to prevent unauthorised users from hacking into your system and update them regularly
• back up your work and ensure back-ups are stored securely, preferably off site
• protect your system against power surges and failures

See our guide on intellectual property crime and your business.

---

Protecting your business name and domain name

Your business name is the most basic intellectual property (IP) asset you have. It could also be the most important. Your business’ reputation is tied up with its name so you don’t want somebody else trading on it.

If the name of your business is distinctive to the goods and services you provide, you may be able to take legal action against anyone using it in the same or a similar field.

You will get additional legal protection if you register the name as a trade mark. For further information, see our guide on how to use trade marks in your business or use the company name register to search for an available company name and trade mark with Companies House.

Protect your name on the internet

If you want to set up a website for your business you will probably want to register a domain name incorporating your business name, or any trade marks you have.

To register a domain name you first need to check whether it’s available. You can search domain names ending in .uk on the Nominet website- Opens in a new window. If you want a domain name ending in .com, you can search domain names ending in .com on the Verisign website- Opens in a new window. Many web hosting companies offer domain searching and registration facilities.

However, having a trade mark doesn’t give you an automatic right to a domain name incorporating your trade mark. Someone may have already registered the domain name you want for the same or different goods and services.

But you may be able to take legal action if you think:

• someone is using a domain name to pass off their goods and services as yours
• someone has taken out your trade mark as a domain name just to sell it back to you

For further information, read the guide to trade marks and domain names on the Intellectual Property Office website- Opens in a new window.

---

Respect other people’s intellectual property

You must ensure you respect other people’s intellectual property (IP). If you infringe someone’s IP the owner can take legal action against you. This can result in injunctions against you, along with orders to pay high costs and damages.

In some cases, infringers can even be found guilty of a criminal offence and be given a prison sentence or an unlimited fine.

Intellectual property management – carrying out searches

It’s a good idea to carry out searches to check you’re not committing IP infringement.

If you’re planning to use a sign you should carry out a full trade mark search – see our guide on how to use trade marks in your business.

You should also check with Companies House to ensure no one else is using your proposed trade mark as their company name.

The registrar can register a trade mark that is the same as or similar to an existing trade mark, providing the owner of the earlier mark does not oppose the new application. However, it is still worth checking that no one has registered the same or a similar trade mark before you make your application.

If you want to make, use, sell or import someone’s invention or goods, you should carry out a full patent search and design search. You should also do a search if you’re considering applying for your own patent. See our guides on how to get patent protection for your business and design right and registration. If you want to use original creative work you should find out whether it is covered by copyright. See our guide on copyright for your business.

Infringing someone else’s rights could be costly, so it is worth obtaining professional help. You can get help from a patent attorney or trade mark attorney. Search for a trade mark attorney on the Institute of Trade Mark Attorneys website- Opens in a new window.

You can find a patent attorney on the Chartered Institute of Patent Attorneys website- Opens in a new window.

---