07 Apr intellectual property – Common myths
IT IS WORLD INTELLECTUAL PROPERTY DAY BUT WHAT IS INTELLECTUAL PROPERTY AND HOW DOES IT AFFECT ME?
Intellectual Property or IP is the general term for a group of rights used to protect intangible property, such as copyright, designs, patents and trade marks.
As we move more and more towards online and technology businesses then the main way to protect assets is via intellectual property rights.
Each of these is worthy of a blog in their own right and there is some useful information explaining the different rights on the IPO website: https://www.gov.uk/government/organisations/intellectual-property-office and the British Library: https://www.bl.uk/business-and-ip-centre/industry-guides
On this World Intellectual Property Day I thought it would be useful to go through 8 common myths around IP in relation to small businesses.
8 COMMON MYTHS SURROUNDING IP IN RELATION TO SMALL BUSINESSES
There is an image of my favourite TV character on social media so surely I can use it
Film and TV characters belong to the company that created them, so although there may be a photo or clip of a character (e.g. Homer Simpson) that demonstrates exactly how you want your business to look and feel, and you would like to use if on your social media post to demonstrate this, you don’t have the right to do so (even if everyone else has used it). This is known as copyright infringement.
I can use a name similar to a well known brand name, especially if I am small business
In a recent case a convenience store in North Tyneside, that called itself “Singhsbury’s”, had to change its name. This is because the sign had an orange and yellow background with white writing (in other words it looked like Sainsbury’s). Even though Singhsbury’s was a small business Sainsbury’s threatened legal action. Using the same or a similar name to a well known brand can be a trade mark infringement or ‘passing off’ (i.e. pretending to be another business and gain the benefit of their reputation).
I have a brilliant idea, that is totally unique, so nobody can copy it
Unfortunately there aren’t any IP rights that protect an idea (only how it is expressed). This can be easily seen on Saturday night television by the number of different singing/talent shows. They all have the same idea, however, each one is technically different e.g. one has a judging panel and another has swivelling chairs. If you have a great idea then the best way to protect it is to keep it confidential until you are in a position to express and exploit it in your own way. If you watch Dragon’s Den this is one of the reasons why they always ask people if they have IP protection.
If I ask someone to design or create something for me I own the IP rights in it
If you are asking someone to design or create something for you then they automatically own the rights, so you need to make sure that the contract ‘assigns’ the IP rights to you. This applies to a range of things such as product design; website build & creation; app design; and branding & logos.
I created a great product for my old company so I can use it (either for myself or by selling it to others)
If you create something whilst you are an employee the company automatically owns the rights to whatever you created when you were employed by them. This was recently demonstrated in the case of an employee from a company called Waymo (that is owned by Google) who set up his own company based on the self-driving technology he created whilst at Waymo. Uber then bought the company that the employee set up. Waymo brought legal proceedings against Uber for breach of confidentiality and theft of trade secrets. This was settled out of court (presumably to keep the details of the technology confidential) and cost Uber hundreds of millions of dollars.
I have lots of contacts in my current job that I can use in my new business
Your current employer will own the IP in its customer lists and databases so you cannot just take this information with you. This is because they are usually considered to be a trade secret so you cannot assume that you can just contact people. Most employers will also have a clause in their employment contracts stating that you cannot take this information in order to compete with them (even if you don’t consider your new business to be in competition with your old employer).
Also, individuals now have greater protection over their personal data so you cannot use it without their permission under the new General Data Protection Regulations (GDPR).
That I can use a brand name in my SEO to improve my rankings
Although it is easy to use brand names, especially when you are limited to key words when doing SEO, you cannot do so. This can be trade mark infringement as you don’t have the right to use the name and you are taking advantage of the reputation and ranking of the brand name to improve your own business. For example, if you are an app developer you cannot necessarily use iOS or Android in your SEO.
If I buy luxury goods at a low price I can re-sell them online
If you buy goods that are branded, particularly luxury goods (including cosmetics and perfumes), you cannot assume that you can sell them online in a commercial capacity. Luxury goods makers can ban the sale of good online to protect their “aura of luxury” based on the value of their trade mark and branding.
If you would like any more information about how Intellectual Property rights issues may affect your business please contact me: firstname.lastname@example.org
This blog is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© SO Law 2018