Are you a tech, SaaS or e-commerce business developing intellectual property (IP) and want to protect it? Unsure where to begin or what pitfalls to avoid? We spoke to Joel Barry, Partner and Solicitor Advocate at Brandsmiths, to understand what the process is like for IP and how to set it up right from the beginning.
IP protection includes copyrights, patents and trademarks which protect your work. Although some IP must be applied for, as with patents and trademarks, unregistered copyrights are in place for all creations (design, brand, content, etc.) from the moment they are created.
A tech or SaaS company, for example, should put trademark protection in place early as a rule. This avoids legal problems and protects the brand in the future should a competitor SaaS business intend to use the same design or logo with a similar product. Joel explained, “With tech and SaaS businesses the main IP asset is the brand. Elements may be patentable and bits of the imagery can get design protection but those steps tend to be taken later on.”
Where would Google be without the distinguishable rainbow typeface branding? Any of their products are instantly recognisable as the Google brand because they have protected their design as solely theirs.
What are the steps when you’re creating trademarks, works protected by copyright or patents for businesses who are just beginning the process to set up intellectual property (IP)?
Joel offered, “As a start-up, you may be thinking, ‘I have this idea and want to protect it to the fullest’. I would say as a starting point, there are only two ways to protect a pure idea. For a start, you could keep it secret but that’s not much good for commercialising it. The other way is to protect an invention as a whole with a patent. You should apply for the patent and put a non-disclosure (NDA) on whatever widget you intend to create when looking for partners, finance, suppliers etc. If you don’t you could risk invalidating any later patent application you wish to make.
Moving beyond the pure, initial idea of your tech and SaaS or e-commerce project develops, you will have some unregistered rights that are in place automatically on the creation or development of the project and/or through launching it publicly. These rights include copyright and unregistered design rights. Once you have a trading reputation in your sector you will automatically gain unregistered trademarks. In short, you will get some unregistered rights which arise just out of running your business but stronger registered rights have to be applied for.”
When is the right time to register for a patent or other IP?
“As soon as you possibly can – if you inadvertently reveal your design you can lose the protection provided by the law of confidence and invalidate later designs and patents you might want to apply for. The application processes can be done, theoretically, on your own but it’s best to seek advice. You can make a trademark, patent or design application yourself, but, you don’t know what you don’t know so it’s better to get some professional input.
I would advise that you spend some time searching for the right professional to get the process started for you.
I advise people that they should shop around, both quotes and advice can be confusing. I would read the fine print; make sure everyone you speak to is quoting to you is on the same basis. The cost of patents, trademarks and copyright varies wildly across all three of the IPs. You want an adviser that you feel comfortable is going to give you sound guidance.”
How do you deal with global trading – do you have to protect against the whole world now?
“You'll want a professional’s input on what’s best in your specific case. Be sure to do pre-launch searches for each of the products you’re intending to protect to assess the risks posed by other rights and businesses. As a start-up, do your searches early before you invest too much in development too because there are rights you can infringe, even if you have never seen them! I would use an advisor to replicate your applications in other markets/countries that are going to be of commercial interest to you initially and then as you grow; seeking protection in every corner of the world is unlikely to be necessary or commercially possible. Use the same trusted advisor for consistency. This is part of the searching you should do before you begin the process of finding the right professional to support you through the entire IP process.
Find someone that is user-friendly and has a wide scope of knowledge and experience especially if you’re thinking about trading internationally at some point.”
Are there points in a business’ journey to avoid setting up IP?
“Always get your IP in place pre-investment, future investors will want to know that you have taken care of this and that it’s not something they’ll have to take on, it could make you less desirable to a potential investor if you haven’t protected your business. And remember, each day you delay, you risk someone else developing something similar and making applications before you do – which can stop you getting a registration or even trading! The sooner you start the process the better.”
How does setting up trademarks, copyright and patents differ in their procedure?
“There are longer lead times for different IPs – registered designs are the quickest, trademarks are second and patents are third as they can sometimes take years. By making an application for a registered right, it doesn’t mean you will get it approved, but unless you apply you certainly won’t get a registration. What people are also often unaware of is that even when you get a registration, it doesn’t mean the registration won’t ever be challenged - it could be attacked at a later date.
Think of having a registration like household insurance – you hope you never need to rely on it to make a claim, but if you ever do, you’ll be really grateful you have it in place.”
Common mistakes to avoid?
“One tip for any business I would say would be to sit down with two or three people like me and see what the costs and expectations are for your business. Be clear and make sure they are too. Interview them knowing the relationship needs to be built on trust to get the right registrations in place for your business and if someone won’t spare you a half hour at the start, they are not likely to find much time for you during the process either.”
What’s the takeaway?
The bottom line is IP protection is a tricky area. Make sure you do your research, spend time finding the right advisor to help you with each stage of your IP journey. Make sure their advice includes a risk/benefit analysis of the things you could do – and equally importantly the different costs of the various options. Advisors are there to advise you on the option and the best route. Make plans well ahead of any investment stages on the horizon to secure your IP, giving potential investors confidence in your product and your business on the road ahead.