Protecting your intellectual property (IP) and assets is something that is often overlooked. This is a shame, especially in this day and age, where the internet is used as a main means of marketing, source of finding products, brands and new ideas on how to expand.
Intellectual property is more than just patenting inventions or prohibiting someone from copying your texts on their website. If these rights are used in the right way, it enhances companies brands, its position in the market and reputation.
An example of the last year is a beer brand which has the same name as a virus which causes a world wide pandemic: Corona. In this case, Corona could do several things based on their IP rights. Of course, they could change the name of the brand in order to avoid any confusion. However, using its trade mark and copyright could also be used to battle fake news or conspiracy theories on its connection with the virus. During this period, it also battled a conflict with a Chinese company, Chitanco. They wanted to free ride on the reputation of Corona by using the brand logo Chitanco for beer in the Benelux. Even though the brands names and way of writing were not similar, the fact that the brand Corona is so well known for its good reputation, caused that the trade mark Chitanco could not be used.
The aforementioned example shows that a good use of IP rights protects your brand so that others cannot free ride on your well established reputation. However, IP rights can also help you in the case that someone copies your website and/or lay out for e-mails. This is a tactic which is commonly used with phishing e-mails in order to make them look more legit.
Developing and/or inventing a product costs time, money, effort and resources. Insufficient legal protection can cause the product to be copied freely, which causes the investment to not be recouped. Sufficient IP protection prohibits another from copying your product, or make it possible to ask a license fee. This is can also be the case when developing software.
As said, developing a product cost an investment and the same goes for a trade mark. Developing a brands trade mark and deciding what it stands for is one side of marketing. Having it properly IP protected strengthens its reputation (as with Corona). However, not enforcing the trademark registration can cause invalidity of the trade mark. Furthermore, discovering that the trademark does not cover a new category of products, can cause damage to the brand and confusion for (potential) customers.
Another side of the medal is the situation in which it is unclear what the IP rights of a company are. This can either cause an unwilling infringement of the IP rights of another. In these cases not knowing what your rights exactly are, can also cause in paying damages which are not necessary or not selling products which you can.
Realize IP protection and what to keep in mind
The first step in realizing IP protection is to have in mind what needs to be achieved.
A first aim can be the protection of products. This can for instance be achieved by applying for a patent or establishing a copyright. If the aim is to protect a brands reputation from confusion or free riding by competitors, this can be done by registering a trade mark or trade name.
A second aim can be to build a brand. Having IP rights in mind while doing so, forces you to a have a strategy. By registering a trade mark, it has to be clear what the trade mark should be, to which products this sees but also foresee to which products the registration must be expanded in the future. This process can create a better overview of the aimed market with trademarks, products and services, so that it is easier to identify a market gap. Furthermore, it limits the chance of unintentionally infringing someone else’s IP rights.
A third aspect is that having an overview of possible/existing IP rights also helps for a quick response if there is a suspicion of an infringement.
The last aspect is that IP rights can differ around the globe. An example is that in the US copyrighted works can be registered, while in the EU this is not possible. Also, in China trademark protection is shorter and possible for other types of marks than in the EU. Furthermore, even in the EU it is possible that different countries have different laws regarding a subject. If we look at current matters, the Brexit is expected to have an influence on e.g. reregistering certain IP rights.
In any case, it is wise to get advice before deciding upon or using your IP rights.
How can BDO help?
BDO can assist companies and private persons in numerous ways regarding IP matters. We have an extended national and international network where we can rely on and advise you with. We are experienced in advising on IP matters in the broadest sense, such as software and copyright, but also on Adwords. We can advise on matters with establishing IP rights and send or assess received IP infringement claims.
Together with EP&C we are hosting two webinars on Wednesday 10 March and Wednesday 17 March regarding various IP related matters. These webinars are free of charge.
