+254 (20) 784 2300 / +254 757 620 200 info@bryanyusuf.co.ke

Intellectual Property (IP) For Small Businesses: How To Protect Your IP

Intellectual Property (IP) assets make up one of the most valuable assets or properties that a business owns. IP assets are in their nature intangible and in many cases are worth more than the tangible assets of a business. Intellectual property assets are protected by law, therefore, giving the owner legal recognition and the right to benefit financially from those assets.

Intellectual Property In Business

Intellectual property (IP) refers to the property or works created by your mind or out of your intellect. IP is made up of the work you create using your mind. This could be an invention, an artistic work, a story, or a symbol or mark.

Intellectual property in business includes the original ideas and concepts that a business owner or its employees have thought of and developed into valuable assets. These assets can be developed by the business owner or by employees, advisors, or independent contractors who have been contracted to develop them.

4 Types of Intellectual Property

Intellectual property assets generally fall into four categories which are copyrights, patents, trademarks, and trade secrets.

Copyrights

Copyright is a legal term that is used to describe the rights a creator has over his or her literary and artistic works. It is a form of protection provided to the authors or creators of “original works of authorship”. Copyright protects works like writings, pictures, art, music, sculpture, films, databases, computer programs, technical drawings, and advertisements.

Copyright law only protects expressions and not ideas, methods of operation, procedures, or mathematical formulas. This means that for any work to be protected under copyright, the underlying idea must be expressed or published in some form.

Patents

A patent is defined as an exclusive right granted to an inventor for an invention. The invention could be a product or a process that provides a new way of doing things or provides a new technical solution to a problem. A patent is usually granted to any person or inventor who invents or discovers new and useful processes or machines that provide a solution to a problem.

Patents will give business owners the exclusive right to stop or prevent other people or businesses from commercially using or exploiting the patented invention. Other businesses cannot manufacture, sell, or distribute any product that has been patented without the patent owner’s permission.

Trademarks

A trademark is a sign or symbol or design or phrase or a combination of these that is used to identify and distinguish the goods or services of one business from those of other businesses. Trademarks serve as brand identifiers of a business, or products and services of that business. Any business can trademark its name or logo or its business tagline. The most common assets that are trademarked include words, phrases, and pictures. However, it is possible to register other distinguishing features as trademarks. For example, Dell and Ford have registered their family names as trademarks and the shape of Coca-Cola bottles has been trademarked.

A registered trademark gives the owner the exclusive right to that mark. The trademark owner has the exclusive right to use it, or it can be licensed to another person or business in exchange for payment. It is important for businesses to protect these important assets because registered trademarks give business owners the power to prevent competitors from using their brand or taking advantage of the goodwill of their brands.

Trade Secrets

A trade secret is any piece of confidential business information that gives a business a competitive edge over other businesses. For any confidential business information to qualify as a trade secret it must meet three conditions. Firstly, that information must commercially viable hence it has been kept a secret. Secondly, the information must only be known to a small number of people. Thirdly, the owner of that information must take reasonable steps to keep it secret.

Businesses must take all reasonable steps to protect their confidential business information. This information could include technical information relating to manufacturing processes or technical designs and drawings. For example, Coca-Cola’s secret formula is considered to be a trade secret. Confidential business information could also include commercial information like distribution methods or advertising strategies or a list of clients.

How Do Businesses Protect Intellectual Property

Businesses need to protect their intellectual property so that they can remain competitive in the marketplace. A small business stands to lose a lot if its competitor discovered and started replicating its secret or intellectual property assets. The key rule in protecting business IP is not to make it public knowledge before protecting it.

How a business can protect its intellectual property will depend on the nature of the asset to be protected. Some intellectual assets require one type of protection while others require two or more types of protection.

To protect its intellectual property, a business needs to do the following:-

1. Register the IP

One way a business can protect its intellectual property is through registered intellectual property rights. Registered intellectual property rights cover assets like trademarks, patents, and copyright. To register these rights, a business must submit registration applications at the different intellectual property offices. A business may register its IP in different countries or in as many countries as possible to ensure a greater level of protection. A business may also seek to register its IP rights under the World Intellectual Property Organization (WIPO) framework which helps save costs and has far-reaching protection.

2. Renew Registered IP

Every business that owns registered IP should ensure that renewals and maintenance are made on time. Renewal and maintenance include payment of requisite fees and making declarations for use. A business risks losing its intellectual property rights if it fails to make renewals on time and a competitor business can take advantage of this kind of mistake.

3. Keep Business Ideas and IP a Secret

As mentioned above, the key rule in protecting business intellectual property is not to make it public knowledge before protecting it. A business should not promote or disclose its ideas to other people or the public before first protecting or registering the IP behind those ideas. If a business needs to involve other people or pitch its ideas to potential investors then the business owner should ensure that those people sign a non-disclosure agreement (NDA) or confidentiality agreement.

4. Use of of IP Clauses in Contracts

Businesses should use intellectual property clauses in their contracts particularly for employees and independent contractors or consultants. Employees will sometimes create intellectual property in their course of employment. As a general rule, any IP created in the ordinary course of employment by an employee will usually be owned by the employer. To avoid any potential disputes with employees, a business should ensure that it has adequate IP and confidentiality clauses in its employment contracts. A business that engages independent contractors should also make sure its contracts specify who owns the intellectual property in the works created by the independent contractors.

5. Keep Records of IP Development & Ownership

A business can protect its intellectual property and guard against infringement by keeping records that show that it owns the works it has created and registered. Registered intellectual property will always have certification or evidence of registration. These records must be kept safe. A business should also keep records of any development of the intellectual property. These records could be activity logs, signed copies of drafts, and technical drawings.

Conclusion

Intellectual Property is an important business asset that should not be overlooked. Intellectual property distinguishes and sets apart your business from that of competitors. In most cases, business intellectual property is a source of revenue for a business. It is, therefore, to protect business intellectual property to restrict other competing businesses from using, selling, copying, or profiting from your works without your permission.

Whereas intellectual property protection may seem like an expensive affair, the benefits outweigh the costs in the long run. Businesses that are unsure of how to go about protecting their IP should seek the services of qualified intellectual property professionals and lawyers to ensure that they get the best possible form of protection available for their work.

For any further information or if you would like a free consultation on protecting your IP, please write to Bryan Yusuf at byusuf@bryanyusuf.co.ke.

Bryan is the Managing Partner at Bryan Yusuf Advocates. He is an experienced corporate commercial lawyer with expertise in general commercial and corporate matters, banking and finance, real estate and intellectual property. He is also a Certified Professional Mediator and advocates for mediation as an alternative dispute resolution mechanism. Bryan is passionate about startups and small businesses and provides them with consultancy and legal services.

Legal Disclaimer: The material contained in this article is provided for general information purposes only and does not contain a comprehensive analysis of each item described. Before taking (or not taking) any action, readers should seek professional legal advice specific to their situation. No liability is accepted for acts or omissions taken in reliance upon the contents of this alert.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.