5 Types of Intellectual Property Rights You Might Have in Your Business and How to Identify Them

There are several kinds of intellectual property that a business can own, some are owned automatically, and some need active steps to ensure protection – such as being registered.

1. Patents

Patents protect inventions. If a company develops and creates a technology or product, this could be protected by a patent. Patents need to be registered, which can be a long and difficult process. The applicant will need to show that their invention is “novel” and incorporates an “inventive step”. The invention needs to be kept confidential before the patent application is approved. If any information is accidentally published before a patent is applied for, the patent registration might not be successful. Once successful, patent protection generally lasts for 20 years. However, in general, a patent only provides protection in the country in which it was registered. If a company wants protection in several countries, then, in general, it will need to make a separate application in each country in which it aims for protection.

2. Confidential Information, Trade Secrets and Know-How

Information is also valuable in less obvious cases. While some might not be patentable, it might still be protected as confidential information and/or contain trade secrets or know-how. There is some overlap between the three categories.

Both commercial and personal information can be protected under the law of confidential information. In order to be protected, the information needs to fulfil several requirements. It needs to have a necessary quality of confidence about it, which means that it must not be public knowledge. It must have been shared in circumstances in which the recipient is under an obligation of confidentiality. This can be imposed by a contract (e.g. a non-disclosure agreement), or it can be implied due to the special relationship between the parties (e.g. employer and employee), or because of specific circumstances in which the information was shared. Confidential information can lose its protection if it is disclosed to the public.

Trade secrets are a specific category of confidential information. They incorporate commercially sensitive information with economic value. It is information that gives you a competitive advantage. Prominent examples are the secret recipes of Coca Cola or Irn Bru. The owners usually have special procedures in place to ensure that the information is treated as a secret. As long as they are kept a secret, trade secrets can be protected for a continued period and their protection will not expire.

Know-how is a quasi form of intellectual property right. There is no set definition of what know-how is. It encompasses closely-held information on, for example, processes, procedures, methods, designs, drawings and formulas – so it essentially is the knowledge of a way of doing something. Know-how is usually linked to and forms part of the skills and experience of the personnel of a business. It is protected under the law of confidential information. The protection lasts, as long as it is kept secret. You will not have to register know-how, but you will need to take measures to ensure it stays confidential.

3. Copyright

Your business might also own copyright. Copyright protects works in a broad number of categories from being copied by others. For example, copyright can protect literature or artistic creations, but also the content of a business plan, or the source code of a computer program. What is true for all of them is that copyright does not protect a general idea. It only protects the specific expression of this idea – recorded in writing or on tape or in any other form. Works of any of those categories are only protected by copyright if they are original. This means that the author must create them through their own skill, judgment, and individual effort. Copyright does not need to be formally registered in the UK. It is automatically owned by the person who creates the protected work. One exception are works that are created by employees during and for their employment. In this case, their employer owns the copyright.

4. Trademarks

Trademarks are a further important intellectual property right. Trademarks are usually registered for specific classes of goods and services. A wide array of signs can be registered as trademarks, for example, words, figurative signs, and even 3D elements. But this is only the case if the sign is distinctive with regard to the goods or services it is registered for. For example, you will not be able to register the word “shoes” for a trademark that covers the goods shoes, this would be too descriptive. If you have successfully registered a trademark, you can defend it against registrations or uses of other signs that look identical or similar to your trademark and are registered or used for identical or similar goods or services. Trademarks are and generally only protected in the territory or country where they are registered. In the UK, trademarks can be registered with the UK Intellectual Property Office. There are further regimes that cover international applications and territories. The trademark registration will need to be renewed every ten years. While unregistered trademarks might also be protected by law, this is trickier and a risky approach. Unregistered trademarks can be protected against infringement if they have obtained a sufficient reputation in the geographical area where the infringement is taking place.

5. Designs

Your business might also own rights in designs. Registered designs protect the appearance of a product, like its shape and surface decoration. In the UK, designs can be registered with the UK Intellectual Property Office. Registered designs give the owner a monopoly right in the design for 25 years. For the registration to be successful, the design must be new and have an individual character. This means that the design’s overall impression must be different from previous designs. Unregistered designs can also be protected by law. They protect the shape of a product against copying for up to 15 years. This includes purely functional products, such as agricultural tools. However, unregistered designs do not protect any surface patterns or decorations. An unregistered design is only protected if it is original. This means that it must not be copied from an earlier design or be similar to other designs in same field.

A lot of different types of intellectual property can be found in a single product. A good example is a bottle of Coca Cola. The name of the product “Coca Cola” is a registered trademark. The shape of the bottle will be a protected design – and it is also registered as a trademark. The general look and feel of the bottle, and any advertisement slogan on it will be protected by copyright. The recipe for the content of the bottle – the drink itself – is a protected trade secret.

It might even be eligible to be protected as a patent if the Company applied for such – although a patent might be difficult to obtain for a drink’s recipe, unless this recipe was an original inventive step. (Please also note that patents and trade secrets are mutually exclusive, so the recipe could not be protected by both). Had the company just focused on protecting and exploiting one of these rights, e.g. protecting its name as a trademark, it would have lost out on several intellectual property rights and profit sources. It might have lost out on the opportunity to grant licences to others who wanted to use the bottle’s design. Had the company not focussed on keeping the recipe confidential, it might have lost out on its protection as a trade secret, which could have attracted copycats.

Knowing what intellectual property you have or might have in your business is only the first step. You will need to develop methods to be able to identify intellectual property rights in the future. You will also need to ensure that your intellectual property is properly protected. This can mean applying for or registering intellectual property rights (e.g. patents or trademarks), or renewing registrations (trade marks) or ensuring that information is kept sufficiently confidential (know-how or trade secrets).

If you do not sufficiently protect your intellectual property, you might not be able to properly defend it, if for example third parties copy or use it against your wishes. This means that others could benefit from your business’ creations or products, which might have taken you a lot of time and resources to develop. Other businesses could set up competition to your business, and you would lose out on customers and profits.

Not sufficiently protecting your intellectual property also means that you might also not be able to properly exploit it. Most intellectual property rights give their owners exclusive rights. If others want to use these, they will have to seek permission, for example by way of agreeing on licences and paying royalty payments. You could also sell and assign your intellectual property rights. Both could be a valuable profit source in your business.

While it is good to know what different types of intellectual property rights exist, it can be difficult to apply these to your specific situation. It can be difficult to identify what intellectual property rights you have in your business, and whether individual works or products meet the requirements to qualify for protection, e.g. if they are novel enough or sufficiently kept confidential.

You should get professional advice on this. We can advise you on specific intellectual property rights you might have and how to best protect them going forward. We can also help you on a bigger scale, for example by negotiating licence agreements so that you can exploit the intellectual property that you have.