Technology is a hot topic at the moment. There are many buzz words and new developments to keep everyone on their toes. Keeping up with the lingo is hard enough let alone understanding the technology behind it. Once you figured out the workings of blockchain, VR, AI and IoT something new will probably have been developed!
As technology evolves, intellectual property (IP) protection has to evolve with it and although the law can be slow to keep up with changes in technology there are currently mechanisms available to protect your IP both through registrations (trade marks, design rights and patents) and through automatic protection (copyright and unregistered design rights).
Intellectual Property is a creation or invention which can be owned and used for commercial benefit. It is often the most valuable asset of your business and something investors want to secure their money against.
You can protect these creations or inventions from being used by someone else and therefore increase the value of this IP and in your business. This is achieved by taking out a registration.
For example, by registering a trademark to a name or slogan you can stop anyone else from using that name or slogan and therefore prevent other people from benefitting from the goodwill you have built up. Often people believe buying the domain name and company name is enough, but it isn’t until you register it as a trademark that you ring fence its use.
It has been witnessed sadly by us on a number of occasions, where business have poured money into branding and have been trading for a number of years, building up goodwill and a name in the market, to find out too late that they cannot register the name or worse someone objects because they own it.
This not only causes huge amounts of stress and disruption to your business but if you are forced to re-brand it could be detrimental and costly. By checking your mark is available and protecting your brand from the start you can avoid this situation from occurring.
Another example would be if you have created a new invention then you would register a patent. This would result in you being the only person in the world allowed to use that invention unless you consented/licensed otherwise. By being the sole proprietor in those rights you can generate fees by charging people to use your invention, you can add its value to your business asset ledger and attract investors.
There are many different types of intellectual property and different ways of protecting them. For more information on how to protect different types of intellectual property please see our article here.
Intellectual property can be registered in different jurisdictions and extend protection over different classes so it is worth getting advice as to how far you cast your net to protect your IP. It is worth exploring early on where you may later market your services or products so you plan the classes and countries now, as best you can, so you do not attract adverse opposition when moving from the UK , for example, where you have an already branded and developed IP causing a re-brand headache.
Companies involved in emerging technologies such as virtual reality and the internet of things should take legal advice regarding the types of IP protection they can obtain. Complications can arise where registered IP rights are used within a virtual reality world or if users create something eligible for protection under IP whilst using virtual reality.
With all new technology areas, the law and IP protections needs to develop alongside each other and this is going to be a changing landscape over the next few years.
Some investors find IP particularly attractive. When looking to invest into a company an investor will be looking at the scale and scope of your IP and considering whether there are any potential infringement claims on the go. Here are some helpful tips for what investors will be looking for:
1. Clear, unequivocal ownership of the IP. Investors will be looking for proof of your ownership. Whether this is registration certificates of trademarks or an assignment document from your developer, having an organised IP portfolio will show an investor exactly what your company owns. If the IP is not something that can be registered (copyright or unregistered design rights) you could include drawings/first drafts of the creation and showing a date or timestamp which would assist in any infringement claim (this is discussed further below). Business IP should be held by the company and not its founders personally so that investors have this set aside as collateral for their investment. If this is not the case an assignment should be undertaken before you seek investment.
2. If you have been unfortunate enough to battle through an infringement claim, investors will want to know the scale of the infringement and how the matter was resolved. If you have a registered trademark there are watching services which will notify you if someone is attempting to register a similar mark. It is a good idea to also keep an eye out for anyone using a similar name, brand or product to you to ensure there is no confusion or similarity to your business (this would give rise for a passing off or infringement action by you).
It can be a stressful time when you realise that someone is benefitting from your creation. Most lawyers will agree that prevention is the best protection and by registering your rights at an early stage you will be providing yourself with the best form of security.
In relation to new and emerging technology, the most likely piece or IP to be infringed are software and coding. Software and coding are mostly protected by copyright (and in some instances a patent). When someone uses your software or coding without your permission there are steps you can take to stop them. It is also important to have clear and precise contracts with the developers to prevent them from being able to replicate or copy the IP or to compete with your product.
Copyright: It is advisable to start with a cease and desist letter to attempt to resolve the issue without further expense. At this stage you should provide details of the copyright, state that you have evidence it is yours and request the breach stops. If this is not successful in stopping the breach there are options of mediation and going to court to get an injunction or damages.
Patent: Patent infringement will be dealt with in the much the same way as above. A cease and desist letter will provide the infringer with the opportunity to stop before you take them to court. Court proceedings could then follow with an injunction and/or damages as a result. Patents can be registrable in different jurisdictions so thought should be taken as to where the infringement is happening. Action can also be taken against infringement whilst a patent application is being processed.
Ensuring that IP is registered as soon as possible and keep clear records of when the IP is created and by whom will provide yourself with the best form of protection from an IP claim. Intellectual property can be extremely valuable and it is worth taking advice from a specialist Intellectual Property lawyer on the best way to protect yourself.
Karen Holden is the founder of A City Law Firm
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