HM Insights

What intellectual property does a business have and how do you protect it?

Intellectual property is a constantly growing asset to businesses of all shapes and sizes. There are a variety of intellectual property rights that are integral to every business in Scotland - such as trademarks, copyright, patents and design rights - and that require to be protected.

Many small and medium sized enterprises sometimes do not realise what IP rights they hold and the relatively quick and cost effective ways that exist to protect and enforce these rights in situations where they are being exploited or infringed by others.

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What Intellectual Property rights do you have to protect?

Trade marks

Trade marks are effectively indicators, of various forms, which identify and distinguish goods and/or services of one business from another, and act as "badges of origin". This could be, for instance, the trading name of a business, the logo, the name of a product or a service.

Trade marks exist whether they are registered or not. A business is afforded statutory protection if they register their trade mark with the UK or EU Intellectual Property Offices (the UK IPO, or EU IPO). However, even if the trade mark is not registered, there are still ways in which the trade mark can be protected (as explored below).

Copyright

Copyright protects literary, dramatic, musical and artistic works, including written works, plans, design documents, software and web content, photographs taken for the business, or a jingle for an advert or design on a website. The important aspect of copyright is the originality of the creation. Originality for the purposes of copyright law means in essence that the work is the result of one's own skill, innovation and effort, and has not been copied from another source.

Patents and design rights

A patent can be used to protect an idea or an invention, in the form of a product or a method for achieving something. You require to apply for a patent to protect an idea or invention. The invention needs to be not obvious to a skilled person, and inventive. Unlike copyright protection and some methods of trade mark protection, you require to have a patent registered in order to protect it. Where patents protect the way a product works, design rights protect the way a product looks. If there is something identifiable or unique to the design of your product, you can register it in order to protect this design with the UK IPO or EU IPO.

How can Scottish businesses protect their Intellectual Property?

The presence of various types of IP rights means there are situations where more than one IP right exists, for example in relation to a product. This opens up ways in which businesses can deal with unfair competition.

In essence, businesses can call upon an array of ways to protect their rights, some of which are set out below.

Domain Name Dispute Resolution Procedures

These days, it is imperative to have an online presence. The most basic element of that is a business' website. For a business to attract and retain its desired customer base the domain name of the website should tie in with the name of the business as best as possible.

Where a business has an issue with another entity over its domain name, it can choose from a number of quasi-legal domain name dispute resolution procedures to challenge the registration of domain names that incorporate or imitate their name. There are a variety of platforms that allow for the resolution of disputes, and it will depend on where the domain is registered. For businesses in the UK, where .co.uk or .org.uk are the most common domains, they can use the Nominet Dispute Resolution process.

These systems are reasonably straightforward to use and are relatively inexpensive compared to court proceedings, where the dispute relates to the domain name only. If successful, the domain name can be transferred to your business, cancelled or suspended, allowing your business to continue to generate as much customer traffic and therefore custom as possible.

Likewise, social media is now at the forefront of advertisement for businesses of any size. The likes of Facebook and Instagram have their own dispute proceedings for dealing with IP disputes.

Disputes through UK-IPO

The registration of a trade mark, patent or design right is an incredibly important stage of protecting these IP rights. As a business, if you are aware of someone attempting to register such rights with the UK IPO or EU IPO, you can contest this registration, on the basis that you have a prior right which conflicts with the right that is being registered.

Likewise, if a trade mark, patent or design right has already been registered, they can be invalidated for similar reasons.

Court proceedings

The courts in Scotland can also allow for both a quick and effective way of protecting a business' IP rights.

Commonly, given the technology available to businesses, IP disputes can arise very quickly and require urgent and far reaching protection to ensure that irreparable damage is not caused.

In Scotland, businesses are able to apply to a local Sheriff Court, or the Court of Session in Edinburgh, and seek various remedies to protect IP rights and compensate for the infringement of these rights. In urgent circumstances, a business can apply to the Court to interdict (stop) another business before they begin infringing an IP right or stopping them from continuing to infringe an IP right. This protection can be obtained on an interim basis at the immediate outset of a court action and can remain throughout a court action until a final decision is made. If ultimately successful at the end of a court action, the business will then be granted that protection going forward.

Court proceedings are considered to be more expensive than any of the other methods of resolving disputes. This is especially so if they are raised in the Court of Session, Scotland's highest civil court, which is considered as the court that holds the expertise in IP disputes and in which an order from the court covers the whole of Scotland.

However, in recent years, the Scottish Government has introduced Scotland-wide interdicts which can be granted throughout the different Sheriff Courts across Scotland. This keeps costs down for businesses while also affording them far reaching protection. There are also commercial Sheriff Courts for disputes that fall within the areas of Glasgow or Edinburgh, which have specific Sheriffs with IP dispute experience.

Get in touch

Harper Macleod's dedicated IP team provide advice on IP rights registration and licensing. Furthermore, the team are experienced in resolving all manner of IP disputes for their clients.

If you wish to discuss any of the methods of protection explained above please do not hesitate to contact the team, who will explain in more detail the costs and options available to your business to protect its IP rights.

Graham Horsman - [email protected] - 0141 227 9685

Jennifer Murphy - [email protected] - 0131 247 2513

Kenneth Campbell - [email protected] - 01463 379 5022

Useful Links

Dispute Resolution

Intellectual Property