18 December 2018

Mathys & Squire explores the Best of British

Is it time to future-proof your British business?

Ever since the result of the Brexit referendum was announced, there have been varying degrees of concern over the future of the British economy, and the future of British businesses.  One of the questions that a British business owner may be asking themselves is  “Why will our product(s) still be bought by people in other members states of the EU and, indeed, the rest of the world, even though the price may rise as a result of inadequate or, indeed, no formal trade deal(s)?”

‘Made in Britain’

In a large proportion of cases, the answer is likely to be simple: people like to buy products that are made in Britain because the “Made in Britain” statement is synonymous with innovation, creativity, craftsmanship and quality.  On that basis, then, and as Brexit comes ever closer, it is important that this accolade is not just promoted but protected.  British companies that make their products (or offer their services) in or from Britain should, now, be ensuring that their USPs are protected to the greatest extent possible.

How can Intellectual Property help?

Wherever innovative effort has been made to generate a product or service, there is almost invariably some Intellectual Property (IP), and it is the laws associated with that intellectual property that can be used to protect the “innovation, creativity, craftsmanship and quality” elements of your British business.

Intellectual property is defined as a category of property that encompasses tangible and intangible creations of the human intellect, and, as many people will know, is primarily associated with copyright, patents, designs and trade marks. What is less well known, however, is that it can also include other types of rights, such as trade secrets, publicity rights, moral rights, and rights against unfair competition. Some types of IP can be registered, whereas others exist automatically and do not require registration.  That said, although unregistered rights involve no cost, in general, registered rights, such as patents, trade marks and designs, do tend to provide stronger protection than unregistered rights.

Registered IP

The main registered rights are patents, registered designs and registered trade marks. Patents protect new inventions and can be used to protect how a products works, what it does, how it does it, what it is made of and/or how it is made.  In contrast, registered designs cover the overall visual appearance of a product (or even a Graphical User Interface), rather than how it works or what it does and, where the appearance of your product is distinctive, can provide a very powerful tool to prevent cheap sub-standard copies being imported from overseas which can. Not only reduce your market share but may even damage the reputation of your brand.  A registered Trade Mark can protect your brand, and could be made up of word(s), logo(s) or a combination of both.  It is possible to protect three-dimensional shapes under certain circumstances, and the fluted Coca Cola bottle is a good example of this.  Even sound- or action-based elements can be registered if they can be shown to be a so-called ‘badge of origin’ in relation to your product(s) or service(s).  In other words, anything you use in relation to your product(s) or service(s) that would cause your customers to think they had originated from you can, potentially, be perceived as a trade mark.

Unregistered Rights

Moving on to the principal unregistered rights, Copyright exists automatically in relation to literature, artistic works, photographs, music, dramatic works, software, databases, films, radio and television broadcasts, sound recordings and published editions.  Trade secrets could also be an important part of your business, and may be protected by the law of confidentiality. You must establish that the information is confidential, and ensure that anyone you tell about it signs a non-disclosure agreement (NDA). If they then tell anyone about it, this is a breach of confidence and you can take legal action against them.  Depending on your business, the potential value of your trade secrets should not be underestimated.  To put this into context, consider that the KFC blend of 11 herbs and spices has been described as “ the biggest trade secret in the world”, and it is difficult to imagine the monetary value of that.

There are other types of intellectual property, but these are the principal ones and a patent or trade mark attorney can assist in identifying which are the most important ones for your business and help you in the registration process(es), where appropriate.

Know your Rights

The type(s) of intellectual property that will protect your British business will be dependent on what product and/or service you are offering.  It is important is to know exactly what types of IP there are within your business offering, and ensure that those valuable assets are protected.  In this regard, the UKIPO acknowledge[1] that it can be difficult for businesses to appreciate the true value of their IP assets, but they go on to say that, “If used well, IP can offer a solid platform for any business to grow. How you plan, manage and protect your ideas could be a crucial feature in your business planning.  What seems unimportant today, could be worth millions in the future, if protected”.

The UKIPO also advise that businesses should “regularly take stock of their assets”, and the UKIPO provide an on-line  IP Health Check tool here, which is free to use and offers to provide a personalised report, suggesting actions and providing valuable guidance. On that note, and as we head ever closer to Brexit, a professional IP audit, such as that offered by Coller IP (https://collerip.com/ip-services/) may be of significant help in valuing your IP and developing a strategy for “using it well”.  Fortunately, there is Government funding available for this through the UKIPO’s IP Audits Plus scheme, through which innovative businesses are given access to funding up to £3000 inc VAT for an audit to establish their IP position. The scheme is available to SMEs, i.e. businesses having less than 250 employees, with clear plans for growth. To apply for an IP audit through the scheme you need to be supported by the UK IPO’s recognised partners. In Wales, the recognised partner is the Welsh Government, in England it is Enterprise Europe Network (EEN) and in Scotland it is Scottish Enterprise.

The Future is Bright

The road ahead may seem uncertain at the moment, but the ‘Made in Britain’ accolade is widely acknowledged and is likely to go from strength to strength.  By knowing and protecting their own contributions to that, British businesses can aim to thrive in a new economic climate.

The content of this article is intended to provide a general guide to the subject matter, and specialist advice should be sought from your attorney at Mathys & Squire.