Samuel Okoronkwo

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3 ways your IP could be at risk

IP (Intellectual Property) is an extremely valuable public asset. For businesses, this can include business names, logos, product designs and inventions. With the security afforded by IP rights, creators can invest time, money and expertise into their creative endeavours and reap the benefits of their work.

However, this security must be upheld by patents and copyrights and may include confidentiality agreements such as NDAs (non-disclosure agreements). Yet, despite the value and vulnerability of IP, many businesses do not guarantee the right protection for theirs.

Should a business choose to forgo securing IP rights, then others could copy their intellectual property without permission and the business would have little they could do to challenge this legally. However, even businesses that do secure IP rights unknowingly fall into common pitfalls that risk these rights being invalid or unenforceable.

Incorrect IP registration

There are many ways that you could incorrectly register your IP and therefore limit the security it offers you. The two main mistakes, however, are also mistakenly believed to be the most minor.

It might seem like a good idea to be as broad as possible when registering your IP. The thought process here is that the broader you are, the more will be protected. This is inaccurate. It is much better to be specific when registering your IP, otherwise, you are leaving ample room for others to challenge the validity of your registration.

The other common mistake made when registering IP is registering it in the name of an employee or a shareholder. Once again, this might seem like a minor issue but one that will become significant should that person ever leave the business.

Loss of IP rights in commissioned work

There will be many times when a business will outsource the design or construction of a particular work to a third party. So, there will be many times when businesses could make the mistake of assuming they automatically own the copyrights to the works they have commissioned. It is more complicated than this.

Simply commissioning the work does not make you its owner upon completion. Under UK law, the creator of the work owns the copyright unless they expressly sign the rights over to the business. This includes work such as website and logo designs, artwork and marketing materials.

If rights are not properly transferred then the third party could object to the use of their work at any time. It does not matter how long a business has been in operation, this has the potential to have detrimental effects on success.

Disclosing inventions or designs before IP rights are registered

It is understandable that during a design or idea process, there is a need to share this process, either for constructive feedback or simply to revel in the excitement of it. However, speaking too soon about the details of a particular work could severely impact the IP registration of that work. In some cases, it may prevent you from being able to register the work at all.

Patents and registers are only granted to new work, therefore publicly disclosing this work in any way before IP registration puts the work at risk. Of course, the best way to avoid this from happening is to not discuss the work with anyone who is not absolutely necessary. And, even those who are necessary, it is advisable that sufficient NDAs are in place.

However, there is still the risk of “unintentional” disclosure. This includes mentions of the work on social media, conversations with colleagues or friends and public presentations of any kind. Again, it is highly advisable that nothing is disclosed about the work unless necessary and only to relevant people.

Avoiding further pitfalls…

Mercantile Barristers will help you protect your IP with our expert advice and guidance, including the drafting of NDAs. We are specialist consultants in the law for when the legal issues involved are complex, intricate and so important that the most seasoned expertise in
advice and handling is required.

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