What is Intellectual Property – An expert’s guide

Design Council Spark supports our ventures by providing insight, advice and assistance from key industry leaders. This week we consider the need to protect your product's intellectual property. We spoke to brand and design expert John Coldham, a director at leading IP law firm Gowling WLG, who is part of the Design Council Spark Community:

What is IP protection?

IP, or "intellectual property" is the cornerstone of the protection of creativity. It is all very well coming up with a great new idea, but it is really important that you are able to ensure that others cannot copy it as soon as you make it public. There are many different types of protection for different things; from design rights for products and copyright for artworks, literature and music, to trademarks for your brand and patents for inventions.

It is common for a single product to have more than one type of protection. Consider an Aero chocolate bar as an example. A simple thing, but full of IP. The name AERO will be a trademark, the shape of the bar might be protected as a registered design, the artwork on the packaging might be protected by copyright or designs, and that clever way they put the bubbles inside used to be covered by a patent.

Why is IP protection important?

IP is what allows you to have exclusivity over what it is you have created for a period of time. You are allowed to be the sole person to market a particular design, invention, etc. This means that if someone else markets the same or a similar product, you have the right to stop them. For some IP rights you need to prove they copied you, but some (for example registered designs) you do not.

What more should be considered?

Your brand is key; it is the identity by which you and your products will be known. It's really important that the identity you choose is protected by a trademark. The trademark registration acts as a warning to others that they should choose a different name, and it also means that if someone does stray too close, you can take steps to stop them.  If you didn't do that, you could have a competitor with a very similar name, which your customers might think is you, or at least linked to you, making sales you should be making. Worse still, the other company may not have the same high standards as you, so customers who have been confused into buying the wrong thing might start telling the world it’s no good, which will have a knock-on effect on your future sales. This is far more common than people expect.

If you're designing a product, protect its design. Many designs are the subject of hundreds of prototypes, with dedicated designers working away to make the perfect product. Many companies out there are perfectly willing to allow someone to hone the design, and wait until it's perfect before copying it, and selling it slightly more cheaply. Design protection is not perfect, but it can stop a lot of these rip offs from happening.

Does it cost a lot?

No – some rights are automatically created and are free! To make the most of these, just ensure you keep documents that show who designed the product, when it was designed, and where. If it was not designed by you, seek advice, as you may need to take some simple steps to ensure you own the rights.

The cost of registered rights, which are often stronger, depends on what you want to protect, and where you want to sell your product. If nothing else, ensure you have protection in your home market, such as the UK. This needn't cost a lot – consider it part of your marketing expenses. The official fees for filing a trademark are around £200, and UK registered designs cost significantly less the more you file at once – £7 each for the first 10, then £2 for each one after that. Patents cost a lot more, but they give you a leading edge in the market based on the technical aspects of your innovation, so the costs are usually significantly outweighed by the benefits.

These are the basic costs; I would really recommend using an attorney to file these rights, to ensure they are worth the paper they are written on. Whilst filing them yourself is better than not filing them at all, attorney advice is likely to mean the rights are stronger and more useful so it is worth the additional cost.

What are the potential pitfalls if IP protection is not taken seriously?

If you do nothing else after reading this, just make sure you consider what IP protection you might have, and decide whether you think it is enough. You may decide it is, and need to do no more, but if there are gaps, the earlier you plug them, the better protected you will be.

The reality is that the more successful you are, the more likely it is that others will want to free-ride on your success by copying you. If you have laid the groundwork and protected your creativity, you are more likely to be able to stop them.  We have many clients who come to us seeking help when they are being ripped off. Those that have decent IP in place end up with better results, which have been obtained more cheaply than those who do not.

How do I know if my IP is protected correctly/appropriately?

Seek advice. A basic overview and some strategic advice does not have to cost a lot of money; in fact, I have helped a number of Spark participants over the years without charging at all. If you have not considered IP up to now, the odds are you are not appropriately protected. There are things we can do to help you even then – unregistered rights are there as a safety net – but it pays to consider your protection early on.

What do you think of the Design Council Spark programme?

The Spark programme is a wonderful opportunity for product designers to get investment, but the real value of the programme is the support offered by the Design Council and the wider network. Participants will always have areas where they need help – perhaps in how to manufacture their product on a large scale, or how to protect their IP – and the specialist network connects them to those who can help.

What makes Design Council Spark different to any other programme you are aware of across the UK today?

It is a genuinely supportive and nurturing environment, with an incredible contact book of specialists willing and able to help – and it is focused on product design, unlike many other programmes.

Why should innovators consider Design Council Spark?

There are so many advantages of the Spark programme that it is hard to think of a reason why they shouldn't!

What is your advice to anyone considering applying for Design Council Spark 2018?

Get your idea in promptly, consider how your product will help people, and take it seriously. It's a real accolade to even get on the programme as the standards are high, but the whole point is that you and your product do not need to be the finished article. The Design Council is looking for people who are receptive to help, and are committed. If you are those things, and you have a good product idea, go for it!

About John Coldham:

John Coldham is experienced in all types of intellectual property (IP) and was recognised in 2017's prestigious Acritas Stars database as a 'star lawyer'. His priority is to help clients to maximise the return on their investment in their IP, through strengthening their portfolio and strategically enforcing it against infringers. John works closely with clients to ensure that they are getting the most out of their investment in their creativity – be that in the brand, the R&D or the design elements. By taking time to ensure he really understands the commercial importance of different aspects of the business, he helps clients ensure that budgets are used in the most cost-effective way, with a constant eye on the commercial objectives. Whether the budget is big or small, every client has the same wish – that it is spent effectively and responsibly while obtaining the best possible result.

John's firm's website has a page dedicated to those wanting to learn more about designs: visit www.gowlingwlg.com/designsforlife for a free guide, podcasts and more. As an active member of the Spark community, John has provided invaluable advice and support to several ventures seeking to commercialise their ideas and has contributed to IP-related workshops as part of the Spark programme.