Intellectual Property

Intellectual property refers to ‘creations of the mind’ and covers everything from literary works and works of art to inventions, designs, brand names and business images/logos. Intellectual property rights may be registered or unregistered, depending on their nature; these rights protect works created by you and your business. If sufficiently protected, you may have the right to sue if a third party uses your intellectual property without your consent as well as the right to profit from the commercialisation of those inventions and creations.

There are four main types of intellectual property that can be protected:

• business names and symbols/logos (known as trademarks);
• inventions (such as new products, processes and, for example, results created as part of a research and development project);
• decorative designs and designs for the appearance or shape of a product;
• original written publications, recordings and other material (including works of art, photos and other images; websites and their content; plans and blueprints; catalogues, promotional materials and formats and layouts of written works).

In some cases, protection is afforded to you automatically and this is generally in respect of copyrighted works, such as works of art, written works and composed or arranged music. Other forms of protection, such as trademarks for business names and logos or patents for new inventions, will require an application to be made for the maximum protection available and there will be registration costs involved in the same. Without registration, your logo or design will still have some protection but it is more difficult to prove your ownership.

If another business uses a name or brand which is similar to yours and (importantly) misleads or might mislead customers, you may be able to bring a claim against that other business for ‘passing off.’ Passing off claims can be difficult to pursue though and it is usually advisable to register your business name (and logo/images) as a trademark to guard against such passing off by a third party.

In the event that your business is not a limited company and another business registers your business name (or a name similar to it), you may be able to object to the registration of that business name by the third-party company but you must be able to show that you have goodwill in the name and that the other business name is the same or sufficiently similar to the name used by you. Similarly, if another business registers a domain name that uses your business name (or a name similar to it), you may be able to recover that domain name. You may also be able to make a claim for passing off (or trademark infringement if you have registered the name as a trademark).