A guide to intellectual property rights

They say that imitation is the highest form of flattery. But when it comes to intellectual property, a competitor copying your ideas can put your business’s whole operation and finances at risk.

To maintain a competitive advantage in your marketplace, you need to be savvy about the importance of intellectual property rights (IPR). Litigation & dispute resolution partner Paul Gordon gives a brief overview of protecting and defending this often-undervalued asset…

What different kinds of intellectual property rights are out there?

It is extremely important that you consider which different types of IPR your business would benefit from to ensure that your rights are protected. If you don’t, your business could be at risk.

Your business may be able to benefit from some or even all these rights, and each are very different. For example, some require registration, some exist automatically, and each right will have a different protection period.  There are various different types of IPR, which include (but are not limited to) patents, design rights (both registered and unregistered), copyright, and trade marks.

How can I be proactive in looking after my intellectual property rights?

You should do an audit to fully understand the intellectual property that is important to your business and work out what you own. This audit should include making sure that you have contracts in place with employees and contractors that deal with IP ownership – it’s advisable to ask a solicitor to help you with this.

You’ll need to take action to register patents, certain design rights and trade marks. There is also further action you can take to protect copyright. You will also need to consider the jurisdictions in which you would like to register your protection for certain IPR.

You should be proactive in monitoring competitor activity to check if your IP is being infringed, be ready to take action to draw this to the attention of the infringing party straight away, and enforce your rights with the help of a solicitor.

I’ve spotted a competitor infringing my IPR – what can I do?

You need to act quickly – if you’re seen to ‘acquiesce’ it could harm your case moving forward.  An urgent and strongly worded solicitor’s letter frequently leads to a resolution outside of the courts, as parties are able to agree undertakings (assurances) for further action to be taken to resolve the dispute, so it’s sensible to speak to a legal adviser straight away. If negotiations don’t work, then there are other routes to try which can be effective in resolving disputes without needing to go to court, such as mediation.

What if I need to go to court – is this very costly?

IP proceedings are brought in the Chancery Division of the High Court. You will need to choose whether to use the specialist Intellectual Property Enterprise Court (IPEC), which is designed to deal with cases more expediently with costs caps, to make it more affordable.

Even so, the reality is that – with the right legal team on your side – many cases settle before court proceedings are issued, and certainly well before trial.

We’ve talked about protecting IPR – how can I actively exploit my IP to make sure I’m making the most out it?

You can commercially exploit your IP in several ways, but you should always take careful legal advice before allowing a third party to use your IP. The most common ways are by ‘licence’ or ‘assignment’.

A licence is an agreement that gives another business the right to use your IP for a specific period of time, normally within a defined territory. You may also keep control over how the IP is exploited during the licence terms, ultimately retaining ownership of it.

An assignment sells the IP to another business, meaning that you lose ownership and control.

Regardless of how you decide to exploit your IP, to make sure you achieve and maximise the true value it deserves, you should ensure you have first taken steps to protect it fully.

When you come to sell your business, the potential purchasers will also want to know what steps you have taken to protect these often-valuable assets.

We’re here to help

Paul Gordon is a partner and head of our litigation team. He is recommended by Chambers UK and The Legal 500 UK, and handles a broad range of commercial and civil disputes for national and international clients. He often works on complex commercial litigation and IP cases, such as this High Court case involving an intellectual property (IP) licence and merchandising agreement, after Silverstone-based Formula 1 team, Force India went into liquidation.