Company and Commercial

Intellectual Property

Frequently Asked Questions on Intellectual Property

Q How do I protect my software?

A If it is an original work, a computer program is protected in the U.K. by copyright as a "literary work". If your software involves an invention, consider also whether you can patent that invention (see below).

Q How do I register my copyright?

A You don't. In the United Kingdom, copyright is automatically protected by operation of law. However, it is advisable to evidence its creation and authorship by appropriate documentation, and to mark the work with an appropriate notice in the form prescribed by the Universal Copyright Convention: e.g. "(c) [name of author], [year of creation]".

Q How do I protect my brand name?

A The best way of doing this is by registering a trade mark. But bear in mind that trade marks have to be registered separately for each class of goods or services to which they are applied, and in each country in which they are used (though you can now register European Community trade marks). They only give protection for the classes and countries in which they are registered. Depending on the coverage you require, this can be an expensive business, but it does give the best form of protection. There are also restrictions on what can be registered, one of the most common problems being that you can't register a mark which is descriptive of your goods or services. Registered trade marks are commonly marked "(R)". However, even an unregistered trade mark can give some protection. In England and Wales, if you can show you have built up sufficient goodwill in your business that, when someone else is "passing off" their business as yours, you have evidence of customers being confused, you can bring a passing off action against them. Unregistered trade marks are commonly marked "TM".

Also consider registering your brand as internet domain names (before the cybersquatters beat you to it) and as a company name.

Q I have developed some new technology. How do I stop competitors stealing my ideas?

A You may be able to register a patent for your invention. To obtain a U.K. patent it must be new, involve an inventive step, be capable of industrial application, and not be excluded by the various exceptions or prohibitions. The following are some of the main exclusions:

  • discoveries, scientific theories and mathematical methods
  • literary, dramatic, musical or artistic works or other aesthetic creations (these are protected by copyright)
  • schemes, rules or methods for performing acts, playing games or doing business or computer programs (but only as such, so if your method or process is otherwise patentable and is carried out by a computer program, you may still be able to patent it)
  • the presentation of information
  • inventions which encourage offensive, immoral or anti-social behaviour
  • varieties of animals or plants, or essentially biologial processes for their production (plant varieties are protected by plant breeders' rights)
For your invention to be new, it must not have been published or disclosed before you file your patent application. When dealing with inventions, it is therefore vital to ensure they are only disclosed to third parties under confidentiality or non-disclosure agreements.

Patents are expensive to obtain, but are a powerful form of protection, as they grant a 20 year monopoly on exploiting the invention. Given the cost of patent litigation, even a pending application can be a deterrent to competitors, but you do need to be prepared to pay the costs of defending any challenges.

Patent protection can be extended throughout Europe and worldwide under international treaties. It may be worth considering filing in the U.S.A. first, especially for internet-related inventions.

Q My company's branding / intellectual property is being developed by employees and consultants. How do I ensure the company has all the rights?

A If employees develop intellectual property in the course of their employment, the company should own the rights. But it is advisable to have express clauses in their contracts of employment to cover this. For example, these can cover the situation where employees have ideas in their own time that are capable of being exploited by the company.

With consultants, they own the intellectual property they develop under contract for you, and you need to ensure you obtain a written assignment from them. Careful drafting of your contract with them (or a close look at their standard terms of business) is advisable here. This can be a problem in the IT industry (where consultants are often used to develop software) or where outside consultants are commissioned to develop a new corporate image.