Patently Prudent

You've come up with an idea for a new product and want to turn it into a business. You're confident that your product will have a strong customer base, and so you work on a marketing strategy to get it out there. You've begun to build your brand, but just when business is taking off you receive a letter from a lawyer. The problem is, your product wasn't new. You didn't know this when you started out, but an intellectual property lawyer representing the developer of a product very similar to yours did, and he wants to take action.

It's a daunting prospect, and one faced by many business owners. However, the risks can be reduced through investing time into identifying what already has been protected in your market. Intellectual property is often placed on the back burner in business, particularly in the case of new ventures. "People get really enthusiastic about developing products or services, but they maybe forget to take a step back," says Stuart Watson, an Intellectual Assets Specialist at Scottish Enterprise. "They maybe don't think it's for them, or they're perhaps a bit scared by the perception of a world full of lawyers and costs that they've never really considered before."

The fact is, businesses – no matter how big or how small – need to consider their own property beyond the bricks and mortar of their offices, ideally from the word go. There are things that businesses can do to take matters of intellectual property into their own hands. Has your company name been taken already? If not, what else is that name associated with? Could it be confused with anything else? Are there available domain names? Through the use of search engines, social media and governing bodies such as Companies House and the Intellectual Property Office, businesses themselves are readily able to research these key questions in order to mitigate risks and infringement further down the line. Of course, businesses should also be aware of and seek the advice of intellectual property professionals to assist with these activities where relevant – for example, in finding existing patents that have already been registered and advising on strategies and expected costs.

"It's essentially trying to get businesses to consider at the very start that they are building a brand," says Stuart. "Of course, it depends on the business, but every single one, be it a multinational tech firm or local bakery, needs to consider their brand."

As part of this, the individual assets of any given brand naturally warrant due consideration from the perspective of intellectual property. If a product backed by all the right marketing and development is taken to market only for it to be flagged up post-launch as infringing, be it in relation to the brand or its innovative nature, legal proceedings may result in money being lost and brand reputation could be on the line. "Sometimes businesses may decide to draft and file patents as a defense against potential infringers," says Stuart. "Also, if a competitor comes along and you can prove you had protected the invention they have copied it'll be easier to defend what you've got."

What intellectual property comes down to, though, is nipping potential risks to business and reputation in the bud. In order to develop assets, create brands and generate value, businesses need to know how to protect their own property and know how to avoid infringing that of others. "They need to take that step back and realise that they are building value in the products, brands and reputations they are creating," says Stuart.

And so it stands to reason that all businesses, while not legally required to, should seek to learn as much as possible about intellectual property and how it pertains to them on an individual basis. They should also consider exploring how they can take matters up on their own, and reach out to experts in the field for advice and guidance.

"Intellectual property lawyers today are very open to the discussion," says Stuart, "and I've found that companies that spend the time communicating with multiple professionals actually come back very educated about what they need to be doing, what costs are involved and what the potential risks are. It's a case of spending time to sit down and speak to professionals to learn more about their individual businesses and how they can support you to grow."

It's a case, ultimately, of doing things right from the start and entering the world as a business with the confidence, security and vision to go on.