Hamish Corner, a Partner in the Intellectual Property Group at London law firm Charles Russell LLP, explains why your intellectual property is more important than ever when doing business in Europe.

Intellectual property is often misunderstood.  Many businesses think they don’t really have any.  Many more consider it an expensive extra, which is only really relevant to the technology sector.  But both of these propositions are fundamentally wrong.  Here’s why.

Broadly speaking, intellectual property (or “IP”) can protect two things – the innovative aspects of your products and services, and your brands.  For any business which has these – and most do – IP is relevant.  Not all IP requires to be registered, and in fact a good deal of it arises automatically without any registration requirements. 

So most if not all businesses, whatever sector they are in, will have a considerable amount of IP without having taken any formal steps.
IP provides a means to prevent your competitors from imitating your technology or products.  This is the domain of patents, copyright, design right and database right.  Each of these types of IP can in theory protect different characteristics or aspects of your products or services. 

IP, primarily trade marks, also provides a means to prevent your competitors from stealing or undermining your customer base.  Whilst not all your brands will necessarily be protectable as registered trade marks, as a general rule most will be. 

That said, it’s important to recognise that the intellectual property system is by no means perfect.  Whilst certain aspects of a given product may be protectable by IP, other aspects will not.  So it is wrong to expect all aspects of your products or business to be protected.

By its nature, IP is also territorial in its coverage.  There are both national and regional IP systems (including pan-EU systems for trade marks and design right).  You must therefore ensure that your IP matches the countries in which you do business.  This is especially important for registered IP, such as patents and registered trade marks.

So, what are the key considerations to bear in mind? 

A few of them are as follows. 

(1)  What IP should you concentrate on?  Trade marks are always worth considering in relation to your brands.  But you should also consider what IP is relevant to your key products or services. 

(2)  Do you actually own “your” IP?  There are several circumstances in which you might not.  In the UK, if you commission someone else to create any reports, content, graphics or other copyrightable material, then in most cases they would remain the owner of the copyright even if you have paid them for it.  You would need to get the copyright specifically transferred to you.

(3)  What is the quality of your IP, and where are the gaps?  Have you registered everything that ought to be?  Does it cover the territories in which you do business?  In the case of patents, do the claims properly cover it cover the inventive aspects of your products or processes?  In the case of trade marks, do they cover all the goods and services which you offer or sell?

(4)  Are you free to use your IP?  This last question is an important one.  Just because you own IP in certain aspects of your products or services does not mean you are necessarily free to operate in the market.  There might be others who own IP in relation to certain aspects of your products or underlying technology, from whom you might need to obtain a licence.

The bottom line is that intellectual property rights form an integral part of the business landscape, for investors, customers and competitors, and can play an important part in business valuations.  Businesses which do not properly cater for them, no matter how good their products or technology, may well be putting themselves at a competitive disadvantage to those that do.

Hamish is a Partner in the Intellectual Property Group of Charles Russell LLP, a major UK law firm headquartered in London and with seven other regional and overseas offices.

Hamish specialises in non-contentious intellectual property and IT law, and acts for numerous technology clients in a broad range of industry sectors. Hamish also acts for a number of leading sports organisations and venues, hotel and restaurant chains and fashion goods retailers.

Hamish Corner, Partner

Telephone: +44 (0)20 7203 5210

Email: hamish.corner@charlesrussell.co.uk