Intellectual Property – The Challenges of Protecting Ideas 

Uncategorized Oct 29, 2018

Everything begins with an idea. Every idea invariably results in an intangible manifestation of it once it’s brought into the real world.

Even if the idea involves creating something tangible, say a new gin, so that you have a physical end product – a bottle of gin - many components that are necessary to the existence of that product will be intangibles. There’s the brand name, the logo, product packaging, appearance or shape of the bottle, any website, marketing collateral and social media profiles, and the gin formula itself.

Intellectual property law is the legal area that governs intangibles, so it has a significant role in today’s digital world. Nowadays knowledge fuels our economy so that most assets of our businesses tend to be digital.  Our increasingly digital society makes intellectual property of central relevance. The term “Intellectual property” covers a large area of law, including patents, trademarks, copyright, designs and trade secrets and other confidential information.

Since for many people, an idea is their key to economic success, being able to protect its resulting output as intellectual property is crucial if the business is to succeed and grow in value.

Do we automatically own intellectual property?

People assume they will automatically own intellectual property, and when they’re ready (for example, because they’ve achieved success in their business) they can turn to protecting it. That’s not how it works.

Intellectual property assets don’t always just exist. Often some action will be required to turn an idea, such as the proposed name of our gin product, into IP – namely a trade mark in this case.

To avoid losing an opportunity to create valuable intellectual property, you need to be able to first identify what you’re about to create, and take the necessary actions to capture it.  Depending on the IP right in question, this will involve taking some other action. For example, with a name, it will entail first doing thorough due diligence checks and then registering a trade mark. With other rights, it may involve using an appropriate legal agreement. 

It’s important to note that it’s also possible to create a liability instead of an asset – such as where proper checks of the trade mark registers are not first undertaken.

Leveraging IP is how the value embedded in it is realised. 

Consider IP early on

The time to consider IP is in the very early stages of a project when the new venture is just an idea in your head. That’s how to manage the risks and opportunities. Otherwise, people could be gambling with their future if they don’t take the time to understand IP. 

For an established business, the best way to begin to address intellectual property, is to do an intellectual property audit and take corrective action. Effectively, you take the temperature of the business to assess what actions are needed to rectify past mistakes or to check the rights and protect them. Sometimes it will be necessary to change your assets so as to use only what you own.

As intellectual property comprises copyright, trademark, design, patent, and confidentiality it means that the actions necessary to turn an idea into reality will differ depending on the type of IP that idea would generate once it’s implemented.

Say the idea involves an invention. So, patents need to be considered. That means you need to know about keeping the idea secret and how to explore it without losing compromising its confidentiality. Otherwise, you lose the possibility to patent it. You need to understand what steps to take in the very early stages as you prepare and consider whether to file a patent application and when. Otherwise, you risk losing the opportunity that’s there. 

While most large businesses have created and enforced a large intellectual property portfolio, many small or medium-sized enterprises (SMEs) tend to leave it too long before getting serious about intellectual property protection.

The name of the game with intellectual property is to be proactive in the early stages of any project when turning an idea into something concrete in the real world.

How to reduce the legal costs

Protection of IP can be costly as specialist lawyers are expensive.  So the cost and difficulty in enforcing IP rights can be a real burden on SMEs that would prefer to focus on growth-related opportunities and scaling their business at the lowest cost possible. 

As an IP lawyer, I handle many intellectual property matters, from trademark filings to infringement litigation.  I understand the complexities that many small business owners face in this difficult area of the law.

So, I’ve put together courses to ease the financial burden of obtaining IP advice. It’s suitable for SMEs, creatives, employees working in marketing departments of large companies, coaches, authors – anyone in fact who is involved in turning ideas into a real-world output.  There is so much that can and should be done before turning to a lawyer for help.

For example, if you choose a brand name sometimes, you should learn how to legal checks of the trade mark registers yourself in order to select an appropriate trademark.

There’s nothing worse than building up goodwill in a trademark someone else was already using, or that competitors can freely use.  When people find they’ve chosen a name that they can’t stop competitors using they realise the implications. Generally, it hits them in the pocket because they’ll begin to lose market share and their revenues drop. They become generic as more competitors enter the field with similar sounding names.  So, there is some IP knowledge and skills that you need to have even if you do intend to consult lawyers and ask them to do searches and registrations. If you don’t know how to do searches then you won’t be able to choose suitable names to put forward for legal clearance.

As we all have more and more ideas, and new projects to develop, we’re likely to need to choose more than one brand name in our lifetime. So, the best way to achieve success and avoid wasting unnecessary time and energy down the line is to learn the essentials of trade mark and other intellectual property that are involved in turning an idea into something that’s out in the world. 

Whether you’re a designer in an agency working to develop clients’ brand identity, or you’re in the marketing department of a large company addressing the company’s branding and marketing needs, or you’re a lawyer, coach, entrepreneur, writer, artist, or other types of creative, you’re involved in turning ideas into reality.

The overall objective is to build a brand, product or business that will succeed. We’re all striving for success. None of us is purposefully trying to fail or to infringe on someone else’s IP rights or aiming to attract litigation or other poor outcomes for our projects. 

Knowing when to keep ideas, processes, and methodologies secret, how to do essential IP due diligence searches, introduce necessary agreements, and deal with IP registrations properly, is how you protect the future value of ideas. 

Unless IP is specifically and actively thought about when you’re turning ideas into real world output there is a very real risk that you will fail to exploit the true value inherent in an asset.

We are still relatively early days into the digital economy which may be why there isn’t more understanding of IP within society. In a recent article: https://www.gatesnotes.com/Books/Capitalism-Without-Capital?WT.mc_id=08_14_2018_10_CapitalismWithoutCapital_BG-TW_&WT.tsrc=BGTW&linkId=55542187

Bill Gates comments on the impact that intangibles have on economic theories which are still heavily based on manufacturing. He recounts how he felt like he was explaining something completely foreign to people back in the 80s when he was pitching for investment. The fact that he had to explain why software is a legitimate investment seems unimaginable. Essentially, Microsoft’s business plan involved a different way of looking at assets than investors were used to. They couldn’t imagine what returns Microsoft would generate over the long term. So, it took time for the investment world to embrace companies like Microsoft built on intangible assets.

Intangible assets cannot be measured unless they are managed. Focusing on intangible assets is the way to preserve the investment a business makes in its brand, creative efforts, designs and technology.

For any new venture, the time to think about IP protection and intangibles is when writing the business plan. That’s when you should take steps to understand what IP is, how it arises, and what significance each type of IP right will have for the venture for which the business plan is being written.  That’s the time to set the strategy on IP matters.

It will be far easier to build management of IP into the day to day running of the venture if you approach IP in this way.  Identifying, capturing, and protecting IP is after all, of central relevance to any venture, even a charity.

As we all have more and more ideas all the time, or new projects to develop, we’re likely to need to understand the best way to achieve success and avoid wasting unnecessary time and energy down the line by learning the essentials of intellectual property. 

By quickly and easily discovering what’s involved to turn an idea into something out there in the real world you reduce the costs of IP advice, and eliminate the risks inherent in dealing with IP in a piecemeal fashion, or after the event.

So, get my Legally Branded Academy course to upskill yourself and your team. Discover the roadmap for successful implementation of ideas. It’s a short practical course providing insights on when to keep ideas secret , how to choose names, do essential IP due diligence searches on IP, introduce necessary agreements and processes to protect the future value of creations.  It’s not an alternative to using lawyers. It’s simply equipping you with business skills you need in the digital economy.

Sign up for Legally Branded Livecast!

Shireen Smith will be doing a livecast to discuss how to protect a brand through trademark registration on 21 December 2018, and monthly livecasts thereafter, if you want to join sign up here.

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