The 5 Most Commonly Asked Questions about IP

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1. How do I protect my ideas?

It is extremely difficult to prevent someone from copying an idea or a concept – unless you protect certain aspects of it in a more tangible form by way of registration of Intellectual Property (IP) rights (such as patents, trade marks or design rights), using appropriate notices (such as the © symbol) or through contracts (such as licensing agreements). These will place you in a much stronger position to enforce your rights against infringers.

2. How can I protect my business idea but still be able to discuss it with others, without them copying it?

It is prudent to have a non-disclosure agreement or NDA put into place before revealing too many details of your idea to third parties.

On a practical note, it can be useful to assess and work out what level of detail you wish to disclose without an NDA in place at the outset. You could talk about your idea in general terms so that it is enough to generate some interest, but not go into too much detail that it reveals too much. In other words, show what something does but not how you achieved it.

3. What about disclosing my business idea to potential investors? Should I ask them to sign an NDA?

Based on conversations with a number of investors, many have said that they see hundreds of companies per month, and if these businesses all asked them to sign NDA’s, then it just wasn’t feasible nor practical to review and sign multiple documents. Where investors see lots of ideas, there is a commercial risk in them signing NDAs and a reputational risk if they did sign and subsequently breached them.

For example, if company A fails on a product, but company B succeeds with an identical product in which an investor is vested, then that investor could possibly be open to a claim by company A, alleging that the investor passed the idea on to company B, when that isn’t necessarily the case.

Ultimately, as a business, you need to assess the situation and ask ‘what is our risk?’ You need to be able to talk about the business in order to get funding. And what are the chances of an investor stealing your idea? Usually a business will have done a lot of ground work which can take years, and investors won’t necessarily have the time and resources to exploit the same idea silently or quickly.

In particular, you should be careful about how much information you disclose if you have applied for a patent, or else, the patent could be invalidated if the information is released into the public domain.

4. How do I create a successful IP strategy?

The first thing to do is to assess which IP your business owns, otherwise you can’t manage and protect it from damage or loss; and if you don’t manage it, you can’t make money from it!

It is important to note that registered IP rights are only worth something if you do something with those rights. They have to be commercially exploited to add value. For example, is there a need for your new mobile app? It could be scientifically interesting, but this doesn’t mean its useful or viable. Is there a big enough demand or market for your product? Is your offering viable in terms of the production costs vs. the price a consumer is willing to pay? There will be many commercial factors to consider. The methods of commercialising your IP and the best approach to use can vary, and can mean for example, that you develop a product yourself from start to finish, or you could sell or licence your IP rights to someone who has the resources and contacts to do it better or faster. You could develop a system or distinctive way of running your business and then look to roll it out as a franchise. Or you could collaborate with others to pool your skills and resources to develop and sell something amazing.

Once the IP has been exploited and your products or services are out there in the market, it is important to monitor that market and keep an eye on the competition and on anyone potentially infringing your IP rights. If this happens, then you will wish to enforce those rights.

It is critical to have an IP strategy in place which aligns with your overall business strategy, and if this is in place and clear from the outset, then it should help your chances of business success.

5. How do I protect my IP rights in multiple countries?

In general, IP rights are territorial. This means that you would need to protect or register your IP rights in those countries in which you wish to sell your products or services. You may also want to consider protection in those countries through which your products might pass on their way to you, if they are produced overseas.

There are a number of treaties in place and methods of applying for registration of IP rights so that you can obtain protection in multiple countries by way of a single application. For example, with the EU trade mark system, you can apply for an EU wide trade mark which covers all member states (this now excludes the UK following Brexit). This can help to streamline the costs and process for those unfamiliar with registering their IP rights.

Longmores’ Commercial team are highly experienced. To discuss how we can help, please get in touch with our Company Commercial team.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.