Biggart Baillie Solicitors

Quick Guide to IP Rights

Enforcing Your Intellectual Property Rights in Scotland 

Every business has intellectual property, from the business name and logo, databases and websites, through to designs and inventions. Intellectual property can be one of a business' most valuable assets and securing your intellectual property rights can be a key factor in the success and development of your business. Equally, failing to protect your intellectual property can put your business at risk. As a result, it is important to know about your rights and how the law can protect them.

1.  What are intellectual property rights?

Intellectual property rights broadly fall into two categories:–

• Registered rights, such as patents, trade marks and registered designs
• Unregistered rights, such as copyright, unregistered design rights and trade secrets

2.  Why should you protect your intellectual property?

It is very important to protect and enforce your intellectual property rights for a number of reasons. 

As an owner of a patent, you can prevent a competitor making, selling, offering for sale, using, keeping or importing a product that falls within the claims of your patent.  If a competitor does any of these things, you will need to take enforcement action to make sure that only you can use your patented invention. 

One of your employees might leave and take your customer database with them.  An action for breach of confidence can be used to prevent that valuable information being passed on to competitors.  

Perhaps a competitor’s trademark is similar to your own and this is causing confusion in the market place.  Unless action is taken, the problem will continue and eventually your trademark may stop being associated with goods or services coming from you. 

3.  What should I consider before enforcing my intellectual property rights?

• Register your intellectual property rights where you can. 
• Establish whether you own or licence your intellectual property rights.  In some instances, licensees can bring proceedings for enforcement.  If you work with contractors to develop computer programmes or promotional material for example, try to get them to agree that you will own the copyright.
• Gather evidence to support any planned enforcement action.  This may involve purchasing a sample of the infringing product.  Alternatively, you may need to gather evidence of confusion in the market place.  It can be helpful to keep a note of calls from customers who have been confused by a competitor’s trademark being overly similar to your own.
• Maintain your registration renewal fees.  If you don’t, your registered intellectual property rights will lapse.

4.  Enforcement

Often a company or an individual whose intellectual property rights are being infringed will seek an interim interdict (the Scottish equivalent of an injunction) to prevent another party using their intellectual property. 

In certain situations, the court may authorise a “dawn raid.”  The aim of this is to preserve evidence that you are concerned the other party will destroy.

You may also seek damages (compensation) for the loss your business has suffered or seek a payment of the profits made by the infringer as a result of his infringing action.  The court also has the power to order the infringer to return any infringing items to you or to destroy them.   

We can help with all aspects of protecting and enforcing your intellectual property rights.  For more information please contact, Brent Haywood.