Protecting intellectual property is probably not the first thing that springs to an entrepreneur’s mind during the heady days of founding their business. But it can’t be ignored. In fact, it should be taken seriously right from the start and integrated into the overall strategy of the business.
The most common mistake founders make is not checking they can use the name they’ve chosen for their startup. If it’s the same or too similar to another business, they may be forced to undergo an expensive rebranding process, pay damages or, at best, restrict their goods or services at an early stage. Equally, if the name chosen is descriptive, it may be very difficult to protect via registration and may require further expenditure to ensure that the brand remains or becomes distinctive from others in the marketplace. This should be factored into business planning from the start.
Registering trade marks is an obvious first step, but it’s not the only one. Brands are about overall experiences and firms should consider other types of intellectual property available such as design rights, patents and copyright.
Not all rights require registration. Creative works such as logos, web copy and photographs, for example, may be automatically protected by copyright. But it’s important to establish exactly who has ownership of copyright. Just because you commissioned someone to produce something and paid them for it, doesn’t mean you own it. This is overlooked by many businesses and is much easier to resolve at the time the works are created.
Patents and design rights have a requirement of novelty. This can mean that disclosure outside of your company will destroy those rights either automatically or after a short period. Entrepreneurs should use confidentiality agreements when sharing information with third parties and seek expert advice on the type of intellectual property that may exist within their firm to ensure opportunities are not missed.
Any entrepreneur with international ambitions will need to consider protecting their intellectual property overseas. While there are some international conventions that you can take advantage of, there is no global regime for registration so you’ll need to deal with each territory on a case-by-case basis. Some jurisdictions are trickier than others – as many will know, if you don’t file in China at an early stage, you are likely to face significant issues.
Your intellectual property strategy is a key part of your brand strategy and should enhance brand value. On a very straightforward level, an investor will see a pro-active, well-managed intellectual property strategy as an indication of a well-organised company with good prospects. The strategy doesn’t need to be complex to have an impact: you can easily impress with a trade mark filing programme covering core marks, territories and goods and services. But it is the integration of this strategy into your business planning that will have the maximum effect.
Successful companies are becoming more sophisticated in approaching this to great effect. Nestlé has been battling to protect the shape of the KitKat and, regardless of the result, the case has resulted in significant free publicity reinforcing its position as the “the UK’s favourite chocolate biscuit bar”. Similarly, Apple’s fierce protection of its intellectual property is absolutely consistent with, and promotes, its reputation as an innovator.