The Power of IP Strategy

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Strategically managing your Intellectual Property (IP) is essential when designing, developing and marketing any brand, idea or invention. Riyaz Jariwalla, Partner at BPE Solicitors, says knowing when to register your IP, in what sequence in different jurisdictions, could be the difference between getting first past the post or losing it all

All businesses have IP in some form or another. The most common form of IP rights include copyright, trade marks, patents and design rights, which protect the visual appearance of either a whole or part of a design, such as texture, colour or shape. Especially in the manufacturing, print and fashion industries, if acquired accurately these IP rights can result in the rapid removal and often destruction of infringing goods.

At BPE we continue to stress and underline to our clients the importance of carrying out regular IP audits, not only to identify current IP, but also to identify future IP and any possible risks (such as litigation, dilution of a brand or third party challenges for non-use) that may exist.

Audits also allow businesses to visualise their IP portfolio and any corresponding value. This could serve to increase their value and allow businesses to commercialise and exploit rights that were identified in the process. Remember, you cannot commercialise what you do not know.

Growing numbers of businesses are doing exactly this and registering new IP. This inevitably means that they are potentially obtaining a silent advantage over their competition. In 2018, 3.3 million patent applications were filed globally, a 5.5 per cent increase on the previous year and the ninth straight increase. Global trade mark filings reached 14.3 million, increasing by 15 per cent from the previous year with global design applications reaching 1.3 million . It is expected that the 2019 figures will follow the same trend.

Should I register my IP?

Not all rights need to be registered to enable owners to enforce them. For example, copyright, unregistered designs, know-how, confidentiality and goodwill are all capable of existing (subject to such rights being capable of subsisting in the first instance) without registration with the relevant Intellectual Property Office.

The commercial decision to apply to register IP rights often involves questions such as, “How much will it cost?” and “How long will it take?”. These are very valid questions, but sometimes applying to register can lead to your competitors or cyber-squatters to get “past the post” before you.

This is why an IP strategy is so important to ensure that businesses do not leave themselves exposed to infringement and the possibility of expensive rebrands because IP has not been registered in the correct way.

KEY STEPS

Below are some key steps to follow when designing, developing and marketing any brand, idea or invention.

STEP 1: Carry out a thorough IP audit to identify what protections are required.

STEP 2: Clearance searches and “freedom to operate” checks will identify any risks in your target marketplaces with regards to similar or identical pre-existing IP. You will then have the information to make a commercial decision whether to proceed with your chosen brand or consider a new one, which can save you significant time and costs in the future. Searches must be done by jurisdiction.

STEP 3: Create an IP strategy which sets out the acquisition sequence of the IP portfolio. It is essential to strategise the order of your filings as different countries have different deadlines to claim earlier filing dates and requirements for registration.

STEP 4: Following registration, consider commercialisation and exploitation of your IP by way of potentially licensing or assigning.

STEP 5: Finally, it is important to actively police and protect your IP portfolio from third party infringers and take necessary steps to make sure your rights are not diluted and/or tarnished due to unlawful use. For trade marks, if unlawful use is not prevented, it could lead to the trade mark becoming commonplace and no longer capable of functioning as an indicator or origin – a key function of a trade mark.

For advice on how to use and protect your IP strategically, contact Riyaz.jariwalla@bpe.co.uk www.bpe.co.uk/ip