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For a business, one of its most valuable assets is something quite intangible. IP is the value generated by your creativity. It can include trademarks, copyrights, design rights and patents. Just because you cannot see or touch it, it doesn't mean it has no value. IP can create income for you, help you grow, and add value when you come to sell or exit your business. Intellectual Property needs to be identified, nurtured and protected in order to safeguard your future.

There are two main categories of IP:

  1. Your confidential information – which is valuable but cannot be registered.
  2. IP that you can register. The Intellectual Property Office is the official UK government body responsible for IP rights including: Copyrights, Design Rights, Patents and Trade Marks.

N.B. These intangible assets need to be protected to the same level irrespective of whether you are involved in just domestic trade or international trade.

Although you cannot protect your company’s inhouse confidential information by depositing it in a central registry, this does not mean that you cannot protect it.

The steps you can and should take are as follows:

  1. Establish a confidentiality policy and make this clear and available to all your employees.
  2. As an integral part of this policy, your confidential information may be encrypted and held in a secure place on your intranet.

Often, however, it is necessary to share your confidential information with an actual or potential partner. In this case we would suggest that you consider completing the following consecutive steps, by agreeing:

  1. A Non-Disclosure Agreement (“NDA”). – These can be either “mutual” where both parties share confidentiality – or one way, where just one party shares confidential information. In an NDA you will set out and define the confidential you are sharing and what should happen to it if negotiations collapse – including penalties should a party breach confidentiality.
  2. A Memorandum of Understanding (“MoU”). – Although not usually a full contract, MoUs are useful in defining what you have agreed and where you hope to arrive. MoUs will usually incorporate the terms of the NDA.
  3. A Letter of Intent (“LoI”). – The final step before signing a full commercial contract (usually “tighter” than an MoU). LoIs will also usually incorporate the terms of the NDA.

The more complex and the higher value the negotiations, the more these documentary steps are advisable. (As a minimum, you should always start with an NDA.)

Templates for these documents can be accessed from Simply-Docs.

See: The Intellectual Property Office.

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Copyright is the legal right of a creator of a particular piece of work to prevent other people from reproducing or making use of that work. The law of copyright exist to make sure that if you’re a creator, you can create value from your work by retaining control over its exploitation. Copyright can apply to a wide range of creations, such as:

  • ‘How to’ guides.
  • Articles.
  • Artwork.
  • Audio.
  • Compilations.
  • Databases.
  • Designs.
  • Documents.
  • Films.
  • Games.
  • Methodologies.
  • Photos.
  • Software.
  • Surveys.

You should:

  1. Work out which copyrights you own or could own.
  2. Determine which ones can be registered – and then register them.
  3. Avoid infringing other peoples’ copyright.

See: The Intellectual Property Office.

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Design Rights protect the texture, contours, shape, materials and decoration of a design. They can apply to a wide range of products including packaging, graphics, logos and the ‘look and feel’ of products.

Design rights are an underused element of intellectual property rights because many people don't know about them. There are two types of design rights: registered design rights and unregistered design rights. You should:

  • Identify which Designs you own or could own.
  • Work out whether these designs can be ‘Registered’.
  • If you can register them, you should if you have not done so already.
  • Consider commercialising those Design Rights.
  • Make sure that you are not infringing other peoples’ designs.

See: The Intellectual Property Office.

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A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, selling and importing an invention for a limited period of years, in exchange for publishing an enabling public disclosure of the invention. Typically, however, a patent application must include one or more claims that define the invention. A patent may include many claims, each of which defines a specific property right. These claims must meet relevant patentability requirements, such as novelty, usefulness, and non-obviousness.

See: The Intellectual Property Office.

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A trademark is a mark that a business uses to differentiate its goods or services from those of all other business. It’s a badge of (trade) origin that tells the consumer ‘this is my product’ or ‘these are my services’. When you have a trademark registered, nobody can use that mark in your business sector without your agreement, and so it’s a very valuable way of protecting your brand. However, trademarks are registered country by country. Therefore, if you are thinking of exporting, it is worth checking whether your trademark (or something similar) is already registered in the country you are considering to approach. You can do this by carrying out a trademark search online with the World Intellectual Property Organization (WIPO) to see if something similar to your brand already exists.

Trademark protection is a complex area of law and seeking trademark legal advice as early as possible in your journey is vital. This not only helps to ensure that you have the right to register your marks but also that you are registering them in the right way and in the appropriate territories.

See: The Intellectual Property Office.

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Food, drink and agricultural products with a geographical connection or that are made using traditional methods can be registered and protected as intellectual property. This protection is called a geographical indication (GI).

GI protection guarantees a product’s characteristics or reputation, authenticity and origin. It protects the product name from misuse or imitation.

The UK GI schemes protect registered product names when they are sold in Great Britain (England, Scotland and Wales).

The EU GI schemes protect registered products names when they are sold in Northern Ireland and the EU.

All product names protected in the EU on 31 December 2020 following successful applications to the EU GI schemes are protected under the UK and EU GI schemes.

An individual or business does not own a GI. Any producer can make and sell a product under a registered product name if they:

  • follow the product’s specification.
  • are verified to do so.

A GI is different to a trade mark. A trade mark belongs to the business that registered a product brand for protection.

UK GI schemes logos and product labelling

There are UK GI logos that represent the 3 designations of GI product:

  • protected designation of origin (PDO)
  • protected geographical indication (PGI)
  • traditional speciality guaranteed (TSG)

Producers must follow the rules for adding a GI logo to UK registered products or packaging before they can sell it. Producers that are required to, will have until 1 January 2024 to add the relevant UK GI scheme logo if their protected food product was registered before 1 January 2021. The logos are available in several formats to download.

The use of a UK GI logo is optional for wines and spirit drinks. If you choose to use a logo, you must follow the rules.

Product names on the UK GI scheme registers

All product names registered under the UK GI schemes, or as a traditional term for wine, are held on the following registers:

  1. Protected food names scheme register: protected designation of origin (PDO) and protected geographical indication (PGI)
  2. Protected food names scheme register: traditional speciality guaranteed (TSG)
  3. Protected spirit drink names scheme register
  4. Protected wine names scheme register
  5. Protected aromatised wines scheme register
  6. Traditional terms for wine register

Each UK GI scheme register lists protected product names and their registered specification (where applicable). EU product specifications will be added as soon as they are available.

Specifications for Welsh product names will be available in Welsh (Cymraeg) as soon as possible.

The date of original registration with the EU is displayed with the register details. This date was taken from the EU eAmbrosia registers. It is given for information and is not part of the official UK GI scheme registers.

Other protected products: United States of America (USA) wines and spirit drinks

The UK has agreed with the USA to protect certain wines and spirit drinks names in the UK. Whilst they are not protected as geographical indications (GI), the UK will protect use of the relevant product name for these USA-origin goods.

USA wines: over 700 wines names are protected as an American Viticultural Area (AVA) which describes their origin as a specific grape-growing region. The wines carry an AVA label.

USA spirit drinks: Bourbon Whiskey and Tennessee Whiskey (and spelling variations) are the 2 protected spirit drinks names.

See the list of protected USA wines and spirit drinks.

Apply for UK GI scheme protection of a new product name

You can apply to protect a new product name and add it to the UK GI scheme registers. There are 4 UK GI schemes. Use the following guidance for your product type:

You can also apply to protect a traditional term for a wine product.

Producers in Great Britain will need to secure protection under the UK GI schemes before applying to the EU schemes to protect a product name in Northern Ireland or the EU.

Northern Ireland applicants

If you’re a Northern Ireland producer, you can apply to protect a product name in Northern Ireland and the EU under the EU GI scheme. You can also apply to the UK GI scheme to protect your product name in Great Britain. You do not need to secure UK GI protection first.

Defra will handle your application under the UK GI scheme application process. You must make it clear if you are applying to one or both schemes in your application.

The Department for Environment, Food and Rural Affairs (Defra) is the competent authority for the GI schemes in the UK (including Northern Ireland). It manages the schemes with support from the Scottish Government, the Welsh Government and the Department of Agriculture, Environment and Rural Affairs (DAERA) for Northern Ireland.

For more information see: Gov.uk - Protected Geographical Food and Drink Names UK GI Schemes

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