10 Key Intellectual Property Questions Answered

A Quick Rundown Covering the Most Important IP Questions

Intellectual property (IP) is what you might consider to be the ‘invisible engine’ that powers modern business. Whether you are launching a start-up, growing a family business or managing a global brand, your success increasingly depends on how well you protect and leverage your intellectually property assets.

These assets encapsulate your ideas, your brand, your creativity and your invention.

Yet, for many entrepreneurs and business owners, IP remains a confusing and, at times, an intimidating subject.

What exactly is IP? How do you protect it? What are the risks if you do not?

To get you started, we answer the 10 most common questions about intellectual property below.

What is intellectual property (IP)?

Intellectual property refers to the ‘intangible’ assets that make your business unique and valuable.

Unlike physical property, IP is described as intangible because it cannot be touched or seen, yet it is often the most important asset a business can own.

IP includes trade marks (your brand name, logo or slogan), patents (new inventions or processes), designs (the look and feel of your products), copyright (creative works such as fiction, photos or videos) and know-how (confidential business information).

These assets make a huge contribution to your business’s goodwill and competitive edge.

As with physical property, IP must be protected from copying, exploitation or encroachment by others.

Fail to do so and this can lead to lost revenue and possibly a damaged reputation.

In the worst case scenario, failure to look after IP properly could lead to the loss of a business.

What is the difference between trade marks, copyright, patents and designs?

It is important to understand what each ‘form’ of IP represents:

• Trade marks: Any sign, name, logo, slogan, colour or shape used in trade to identify and distinguish a business. Think of the Nike ‘swoosh’, the Tiffany jewellery ‘robin’s egg blue’ colour or the Coca-Cola bottle. Trade marks are about brand identity.
• Patents: Protect new inventions or processes, such as new drugs, machinery or environmental solutions. Patents require novelty, an inventive step and industrial applicability.
• Designs: Protect the visual appearance of products – the ‘eye appeal’ – such as for example in the context of clothing, furnishings and consumer electronic products. Registration is recommended for stronger protection.
• Copyright: Protects creative material broadly categorised by artistic, literary, musical and dramatic works. In the UK, copyright arises automatically and there is no registration mechanism.

Each type of IP serves a different purpose and many businesses would need to protect more than one kind.

For example, a product that functions through patented technology may be known to consumers by its brand name (protected as a registered trade mark) and embodied by an ornamental physical appearance (protected as a registered design).

How do you check if a new name or invention is available?

For trade marks, start with free searches on Google, Companies House and domain registries.

The next (and most important) step is a registered trade mark search at the UK Intellectual Property Office (UKIPO). A trade mark attorney can arrange and analyse a thorough search for similar names to avoid any infringement further down the line.

For patents, you must check if your invention is truly ‘new’. This involves searching patent databases (such as Espacenet) to see if your idea has already been patented.

Patent attorneys can arrange specialist ‘novelty’ searches to assess whether your invention would stand a good chance of being granted a patent.

What is the process for registering a trade mark or patent in the UK?

Trade mark registration:

1. Decide on your mark, the goods/services it covers and the owner legal entity.
2. File the application with the UKIPO.
3. The application is examined, followed by a two-month opposition period.
4. If unopposed, the mark is registered for 10 years, renewable indefinitely.

Patent Protection:

1. Prepare a detailed description of your invention, including how it works and what makes it new.
2. File a patent application with the UKIPO.
3. The application is examined for novelty, inventive step and industrial applicability.
4. The process can take several years and may involve responding to examiner’s objections.
5. Once granted a UK patent can last up to 20 years, provided renewal fees are paid annually.

Both processes require careful planning and expert advice.

In the case of patents, the process requires the skill of a Chartered Patent Attorney.

For patents, confidentiality before filing is critical because public disclosure can destroy any chance of protection.

Is UK protection enough if I plan to export?

No. Both trade marks and patents are territorial rights. A national UK right only protects you in the UK.

• Trade marks: Aside from filing nationally in territories of interest, the EU offers a European Union trade mark registration system (EUTM) for unitary protection in 27 member states. International registration (via the Madrid Protocol) allows you to designate specific territories under the umbrella of a single application. The route to registration is often a matter of commercial and economic strategy.
• Patents: You can file a European patent application (covering multiple European countries) or use the Patent Cooperation Treaty (PCT) to seek protection in over 150 countries, but you must eventually pursue national patents in each jurisdiction.

Always conduct trade mark availability and patentability searches in any relevant territory before filing.

Why should I register my trade mark or patent?

• Trade marks: Registration gives you an exclusive property right which makes enforcement easier. Moreover, it adds business value and facilitates licensing and franchising opportunities. Without registration, you would need to rely on the common law tort of ‘passing off’ as a means for stopping competitors stealing your brand, which can be costly and uncertain.
• Patents: A granted patent gives you the exclusive right to exploit your invention by utilising it in the marketplace, to licence or sell the technology and to stop others from using it without authorisation. Without a patent, competitors can copy your invention and you may lose the commercial advantage your innovation provides.

Both trade marks and patents are powerful assets because they ringfence your ‘space’ in the industry, attract investment and can provide you with substantial leverage in negotiations with buyers and investors.

How do I enforce my rights against an infringer?

Trade Marks:

• Use online platform takedown procedures (e.g., Amazon, Instagram) for infringing products.
• Send a cease and desist letter through a qualified trade mark attorney.
• Consider litigation if necessary.

Patents:

• If someone uses your patented invention without permission, you can send a cease and desist letter or perhaps settle by negotiating a licence.
• Patent litigation can be complex and costly, but it is sometimes necessary to protect your market position.
• In some cases, customs authorities can help block the import of infringing goods.

The key advice is to always act quickly and seek professional advice before taking any action.

What are common mistakes or misunderstandings about trade marks and patents?

If we could outline the key mistakes we see from our experience, it would be these:

• Not conducting thorough clearance searches before launching a branded product or service.
• Wrongfully assuming that a business name registered at Companies House (or a domain name registration) gives legal protection.
• Believing that a UK trade mark registration gives its owner the right to use the registered mark.
• Failing to keep the details of a patent confidential before filing (this can usually destroy patentability).
• Choosing non-distinctive or descriptive brand names that are hard to protect.
• Not registering in all the important territories where a patent is being exploited or where branded products or services are being sold.
• Not keeping your recorded ownership changes up to date.

Avoiding these pitfalls can save you time, money and stress.

How do I best look after my trade mark or patent once protected?

There are certain golden rules to follow, such as:

Trade marks:

• Always use your trade mark in the same format consistently and always use it as an adjective. Never use it as a noun to replace the name of the product of service it relates to.
• Endeavour to monitor competitor filings and set up watches to spot any conflicting applications that you can challenge before they register.
• Keep your address for service updated to avoid missing any critical official notices.

Patents:

• Pay annual renewal fees on time to keep your patent in force.
• Monitor the market for potential infringers.
• If you are unable to exploit the patent commercially through your own means, consider licensing it to generate revenue or expand your reach.
• To help with enforcement purposes, keep carefully documented records of your invention’s development and use.

Proactive management ensures your IP remains a valuable business asset.

What are the key requirements for patent protection?

A patentable invention must be:

• New: Not disclosed anywhere in the world.
• Inventive: Not obvious to experts in the field.
• Industrially applicable: Capable of being made or used in industry.
• Not excluded: For example, it cannot be an abstract idea or a business method.

Most importantly, keep your invention confidential before filing. Public disclosure can destroy your chances of obtaining a patent.

Why IP matters for every business

Taking care of its intellectual property is imperative for a business. IP should never be considered merely as a legal ‘formality’.

Trade marks protect a brand and its reputation; patents protect inventions and technical edge.

Both can be monetised, enforced and leveraged for growth.

You may be just starting out in business or already established and looking to expand internationally. Taking the right steps now can mean the difference between success and failure.

Whatever your situation, we can help you. If you have questions or need support, the team at Stevens Hewlett & Perkins is here to guide you on the path to success.