What is meant by intellectual property (“IP”)? Almost any business has some IP, and some or all IP may be very valuable. Your business will have some IP even if it is a small start up.
Types of IP
Here are some examples of IP that a business of any size might own: its brand name/s; trading name/s, logo/s, other identifiers or any unregistered trademarks that it uses; any trade mark/s registered in its name; copyright in any written or graphic material it writes, produces or compiles or commissions others to produce for it; trade secrets or confidential information or know how developed or purchased by it, and any patent registered in its name for an invention.
Certain IP rights will exist in something without registering it anywhere, for example copyright in the content of a business’ brochure or website, or a particular collection of information compiled by the business as a database, or a customer list. Copyright is a wide-ranging right which can also protect a variety of other assets. One of the most important is software that you write or have written for you as a bespoke product where the ownership is assigned to you by the software developer, not just licensed to you. Enforcement of copyright will not be possible unless you have adequate evidence of who produced the material and when they did so. It is helpful but not essential to add the following at the end of any of your copyright material or item: © year of publication and your business or company name.
Trade Secrets and Confidential Information
Any trade secret or confidential information is best protected by ensuring that it is stored securely and is not accessible to anyone else apart from you as sole trader. If you employ anyone, or you are in partnership or operate as a company with any other director or owner, you may need to share such information with one or more of them in order to run the business. In order to pursue business projects, you might also need to share it with one or more people outside your business. In that case sharing should be on a need-to-know basis only and you should ensure that there is a confidentiality agreement between your business and those to whom you disclose the information under which they agree to keep it confidential and use it only for the purposes you agree in that agreement. It is best to engage a legal adviser to help you with such an agreement.
Brand and Trade Names, Logos etc.
It is important to avoid adopting any business name, brand name, logo or other identifier of your business or product/ service which is ineligible or too weak to be either registered by you or protected by you from use by another entity - you should seek legal/trade mark advice well before you implement any such “identifier”, and before you spend time or money creating or adopting it. (For further information, see Protecting Intellectual Property.)
It is also important to be aware of third parties’ IP rights in names etc., so that you can avoid inadvertently infringing their rights. For example, when choosing any business or trade name, brand name, logo or other “identifier”, you need to be sure that you are not adopting any identifier already in use by another entity; they might take legal steps to force you to change your identifier or to claim compensation for infringement of their IP rights.
IP Audit and Protection
You should carry out an audit from time to time of your business’ IP, and check that you have taken whatever steps you need to protect it. It would be prudent to take legal advice as to what can and should be protected, and how you can protect it. It is also important to be aware not only of your own IP, but also of others’ IP in case through your own activities you inadvertently infringe their rights in their IP.