As businesses increasingly look for ways to cut costs organisations would be well advised not to take their eye off the importance of protecting market share through careful investment in intellectual property rights (IPR).
Making cutbacks in relation to the protection of your IPR (ie not registering a trade mark or design, or not applying for a patent) could seriously damage your business if a competitor either beats you to it or simply takes the benefit of your hard work for itself.
Whilst you may able to fall back on unregistered rights, such as unregistered design rights and passing off, reliance on this type of right is invariably more restricted and satisfactory results against competitors are much harder to achieve.
For example, copyright and unregistered design right only protect against copying. If a competitor launches a product made to your design, but has come up with that design independently, you will have no cause of action. If you had chosen to register a design then whether or not your competitor had copied is irrelevant. For UK cover, the fee payable to the UK Intellectual Property Office is as little as £40 (excluding professional fees).
Another example lies in passing off actions, where one trader effectively trades off the goodwill built up by a competitor. These actions require the suing party to prove a sufficient level of goodwill. However, registering a trade mark (again, the fee can be as little as £200 excluding professional fees) provides both a dagger and a shield.
The dagger allows you to pursue third party infringers without having to prove goodwill - the mere fact that there is a registration is sufficient. The shield means that, where UK trade mark infringement is an issue, you have a defence against any claim brought by a third party.
Once you have a protection policy in place for your IPR, it makes commercial sense to enforce it where appropriate (suing customers is not always the best course of action, for instance). It will send out the right message to the marketplace that your business will not tolerate third parties taking the benefit of your hard work – essentially cutting corners in leaner times.
It is cheaper to copy another's idea than come up with your own and hardly surprising that the current economic climate provides a fertile breeding ground for unscrupulous competitors.
If you don't have the protection in place, then you will find it more difficult to take effective action. In short, think carefully before you spend less on managing and policing your IPR in the coming months. Studies have shown that investment in marketing in cooler times can significantly increase your market share as competitors make cutbacks. Bearing in mind that nowadays a substantial amount of business goodwill is made up of IP assets, would you want to lose out?
For more information on the team's services please contact Nicholas Briggs on 0121 237 3057 or email nicholas.briggs@sp-legal.co.uk
