Protecting Your Business Idea: How We Can Help

The main intellectual property rights most often relied upon are copyright, patents, trade marks, designs (registered and unregistered), moral rights and rights of confidence.  Some, but not all, of these rights can be registered through an application process (patents, trade marks and designs). Once registered, ownership of these rights is established, and only in exceptional cases can such proprietorship be questioned or challenged.

However, if a business idea is not capable of being protected by registration, how then can the creator prevent the idea from being copied or otherwise appropriated by competitors? 

For example, if an online retail company comes up with an innovative method of conducting online sales that incorporates a bespoke screen design and a specific manner in which the customers are directed to click through to the various stages of the sale, how can the company protect its rights in this creation? 

The method may not include novel software capable of patent registration.  If the company has any trade mark registration, it would most likely be of their company name and therefore would offer no protection in terms of the new method.  The company would therefore have to rely on design registration (within the strict 12-month deadline for application) and any copyright relevant to the method. 

As is often seen in such cases, the success and attraction of these innovative methods are most likely based on a combination of various elements.  If the company only acquires protection for the visual elements (design and copyright), then it is not in a very strong position to prevent competitors from modifying or altering the idea in an effort to avoid legal sanctions.

Another example is a television producer who comes up with a new programme format for, say, a reality television show or quiz show, or a games inventor creating a new board game. 

Neither of these creations is protected by any one type of legal right and would require a combination of various rights.  Television format rights are now beginning to be recognised, since broadcasting rules and regulations are constantly reviewed to meet changes in technology and trends. For a board game, however, the company or inventor would have to rely on a combination of copyright, registered and unregistered designs, trade marks and possibly patent protection.

The tort of passing off can be an alternative in some cases, if there are no other grounds. To rely on passing off, however, you need to have an established reputation for the idea or invention that you are seeking to prevent copying. If the idea is new, such reputation would most likely be difficult to prove.

Entrepreneurs or inventors need to be aware of the problem and plan well ahead. 

Establish what elements of the business idea may be capable of registration, and make sure that an application is submitted as soon as possible:

• Patents: Most business ideas are not patentable unless they involve a novel step and fulfil the other technical requirements of a patent.  Expert advice is required and it is important to act quickly, since the right to patent is lost on publication.
• Trade Marks: If there is no other way to protect your idea, some strong registered branding will assist. Decide on a winning, memorable name to brand your creation or idea. That way, if third parties copy your idea, at least you will be sure the market will always recognise and choose your brand first instead of your competitors’.
• Designs: As with patents, there is a strict deadline for application, so as soon as it is established that this is a relevant right for protection, do not delay in submitting an application for registration.
• Copyright: Make sure records and databases are always fully kept and backed-up, preferably with hard copies. Copyright does not require formal registration, but it is important you are able to produce evidence of your prior rights in the ideas or inventions. 

With the right advice and prompt registration of the distinctive elements of your successful innovative ideas, there should be ways to prevent unauthorised appropriation and ensure that you acquire the maximum benefit from the success. 

For further advice contact Dennis Lee dktl@silvermansherliker.co.uk or Neil Eagleton nde@silvermansherliker.co.uk.