IP's not just for Big Brands and High Tech Businesses

Sacher Cake
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Jane Lambert

At the beginning of the last century there was a bitter dispute between the Hotel Sacher and Demel over the right to sell the original Sacher cake (see the "Legal Issues" section of the article in Wikipedia). I have been instructed in similar disputes in England (see Fat Betty, Bettys & Taylor Group Ltd. v Cheese & Co. BL O/163/09 16 June 2009) and briefed and consulted by just about every type of business from architects to undertakers.

Every type of business owns at least some intellectual assets. It would not be able to function without them. And each and every one of those concerns relies on intellectual property law to remain in business. Starting at its most basic it will have its name and reputation. That may simply be the name of the owner or it may be a fancy name like The Golden Hind. Its products and services may have names and reputations too. Then there are the designs, formulae or recipes that give those products or services their distinctive qualities. Also there are the brochures, catalogues, newspaper and local radio ads and websites that promote the business or its products and services.

You get the picture.  Intellectual property concerns all enterprises and not just big brands, multinational pharmaceutical companies, smart phone manufacturers and other big businesses. Even if you do nothing to protect or exploit your own IP you may still find yourself in a costly dispute over someone else's. Intellectual property is something that you ignore at your peril.

But you have to be careful  of the other extreme. Intellectual property rights can be very expensive to procure and even more expensive to enforce. Very often they have not been necessary or even useful.  In my career at the Bar I have known far more businesses that have failed from having too much IP than too little. Some of those failures had been caused by patents that cost many thousands of pounds to obtain but could never be worked. Others by disputes that were abandoned because the rights owner (who in many cases had a strong claim) simply ran out of money.

Those disasters were caused largely because business owners and managers left it all to professionals who knew everything about intellectual property but nothing about the businesses they  served. They will have advised correctly on the best legal solution in a perfect world but such legal solutions may not have been the best business solutions or in some cases any use at all in the circumstances of the case.

So what can be done? Obviously, we professionals can do more to understand our clients' businesses, their needs and resources and how they are managed; but that depends to a large extent on what those business owners tell us. The other part of the solution is for business owners and managers to learn more about intellectual property so that they can avoid making disastrous decisions and spot and head off potential difficulties long before they become threats.

They can do that in many ways. There is no shortage of useful information and publications from the Intellectual Property Office, the British Library, the World Intellectual Property Organization, the European Patent Office, the EU Intellectual Property Office and almost every law firm and patent and trade mark agency in the country. The problem lies in absorbing and making sense of all those materials.

So here's my tip.  I give lots of talks and write lots of articles that are useful to all sorts of small businesses. Let me know who you are so that I can alert you to some of my workshops, seminars, webinars or other events in the future. Maybe you want some general one-to-one advice on a particular issue. I can give that too either at my pro bono clinic in Barnsley or on a fee paying basis. Either way let me know who you are by lodging a message through my contact form or calling me on 020 7404 5252 during office hours.

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