At a time where information is easily accessible yet easily manipulated, it can be difficult to identify effective and comprehensive intellectual property practice.
However, navigating the complexities of intellectual property (IP) law can be challenging, even minor oversights or mistakes can be costly with significant consequences. Here are some common IP mistakes and how to avoid them:
1. Misunderstanding IP ownership
There are many common misconceptions about intellectual property and how one comes to own the same. For example, just because you pay for work does not mean you necessarily own the intellectual property rights in and to the work. Payment for intellectual property alone does not constitute a transfer of rights.
How to avoid: Ensure that all IP created by employees, contractors and partners is clearly assigned to your business by way of sufficient written agreements. Include IP clauses in employment contracts, non-disclosure agreements (NDA) and partnership agreements to avoid ownership disputes.
2. Failing to protect IP at an early stage
Many businesses tend to delay protecting their IP assets, under the impression that it is something that can wait. However, some IP rights operate on a first come, first serve basis or have built-in timers for eligibility. This can therefore lead to losing rights.
How to avoid: Protect your IP and devise a bespoke strategy as early as possible – each business’ IP strategy will look slightly different. For registered rights, it is crucial to apply for registration as soon as possible. However, this should be undertaken by a specialist IP legal advisor to ensure that such action is executed correctly and aligns with your strategy.
3. Overlooking the importance of trade secrets and confidentiality
Businesses often focus on their registrable rights like trade marks and patents, but neglect trade secrets and confidential information, which can be as equally as valuable. There is no automatic duty of confidentiality in the UK, so it is absolutely vital to formulate a strategy for protection of your confidential business information.
How to avoid: Identify and protect your trade secrets and confidential information by implementing a strategy for the same. This may include a robust NDA strategy, water-tight contracts and a trade secrets policy.
4. Overlooking international protection
There is a risk that a business may not consider international protection and solely focus on protection in its home territory. As such, IP rights may be utilised by other people in other parts of the world, which could have serious consequences for parties looking to expand into these territories.
How to avoid: Have regard to the territories you wish to expand into in the long-term when obtaining IP protection and formulate a strategy accordingly. In addition, there are some avenues you can take to obtain protection in multiple territories at one time, which may reduce the overall cost.
5. Not conducting proper IP searches
It is vital to conduct due diligence prior to launching a new product or service, particularly when it comes to brand names and trade marks. Launching a new product or service without conducting throughout IP searches can lead to infringement issues and costly battles.
How to avoid: Before launching any new product and/or service conduct searches to ensure you are not infringing on existing rights – there are searches we can do to help with this due diligence.
6. Failing to update your IP strategy
As your business develops, so does your IP – for instance, logos are often refreshed, and new products are created. Where this occurs, it is likely that a business’s approach to their intellectual property should change to ensure protection is maintained. In the absence of this, your strategy runs the risk of becoming outdated and ineffective.
How to avoid: Your IP strategy should be reviewed on a regular basis. However, the regularity of review is dependent on the context of your business approach. For some, an annual review will be satisfactory, whilst, for other businesses (such as those that continuously release new products), a more frequent review is necessary. The key is to ensure it reflects your business approach so that your IP protection remains robust and relevant.
Ultimately, avoiding the common mistakes requires you to take a proactive approach in managing your IP sufficiently. In addition, these mistakes can be best avoided by way of obtaining legal support. This ensures that your IP is managed by trained professionals who can advise you on top tips to getting the most out of (and protecting) your creations.
This article was co-written by Amy Ralston and Joey Medway. If you require any support in relation to your intellectual property, such as copyright, trade marks, design rights, confidential information and trade secrets, please get in touch with our expert IP lawyers at ip@stephens-scown.co.uk.