We have all had that Eureka moment when we think we have thought of something new. Sometimes we think there may even be a viable business behind it. So how do you go about protecting that idea, particularly if it is so fundamental and integral to the success of your business model?
Ask yourself a few questions: Can I protect it so that my competitors cannot copy me? How practical is it to do so? How much will it cost me? Can I enforce it? Is it really that unique? Would I be better off just getting on and doing it?
To protect a business idea or model there are five key areas not all of which will be relevant to a particular business:
Law of confidence – this is a general duty of confidence which protects confidential information and ideas from unauthorised use or disclosure and is relevant to the early stages of a business idea or model. You can disclose information and retain legal protection from unauthorised use or further disclosure if (a) the information is itself not trivial and (b) it was disclosed in circumstances where an obligation of confidence exists. Read more about confidential agreements and non-disclosure agreements here.
Copyright – this protects the expression of ideas, not the ideas themselves, for example, the software, text, image or design. Particular care needs to be taken with photography and website code. We have seen many businesses that have been caught out regarding ownership. The creator of a work will usually be the first owner of the copyright but this can be “assigned” to someone else which effectively transfers all rights. This may leave the creator with something known as moral rights.
Patents – protects ideas which are new unique processes. The uniqueness needs to be proven as part of the registration and this can be a formidable and expensive hurdle. However, if you have a patent you have an enforceable monopoly right over the exploitation of that idea.
Trademarks – these may be unregistered or registered. If you have a brand which you need to protect this could be for you. Do you know the difference between the and symbols? Read our mini-guide: Seven practical steps to protect your intellectual property here.
Domain names – arguably the modern day version of Trademarks, having key registered domains (eg.123.com or truelegal.co.uk) can be more useful and cheaper to obtain than trademarks, and be sufficient to warn others off using that branding.
Design Rights – like Trademarks these come in the form of registered and unregistered rights, and may be available to protect someone copying your design. They are more easily registered than patents and provide a useful and enforceable deterrent.
Once you have these some or all of these rights you can exploit them by licensing them to third parties. It is best to formalise these into a Licensing Agreement which needs careful drafting to obtain the maximum protection of your investment to ensure royalties and other licence income is secure.
Two great sites to look at if you are new to this field are www.patent.gov.uk and the more user-friendly and business focussed www.intellectualproperty.gov.uk.
Martin Truman is a commercial solicitor. He runs a fully regulated law firm delivering no-nonsense legal advice to UK businesses and business owners at an affordable price. Discover more at http://www.legal-advice-centre.co.uk/.
