Intellectual Property (“IP”) is a term which is used to describe a range of legal rights that attach to certain types of information and ideas and to their particular forms of expression.. IP rights fall into two categories: registered and unregistered rights. There are three well-known types of Intellectual Property rights: copyrights, trademarks, and patents. Looking at copyright, this will protect original artistic, musical, dramatic and literary works, including for example sound recordings. IP is a complex area of law, however, and different types of IP rights will suit different situations.
What exactly is IP?
Intellectual property is something unique that is physically created. Intellectual property rights as mentioned above include patents, trademarks, designs and copyright, but an idea alone is not intellectual property which is capable of being afforded copyright protection. IP is capable of being sold or transferred. IP disputes can arise when others use the owner’s IP without their permission.
Why is it important to protect IP rights?
Every business has valuable intellectual assets such as designs, visual or audio content, knowledge, or even inventions. Intellectual property can be just as important to businesses as machinery or other tangible assets, as can be seen in various pieces of case law including the recent Court of Session case of William Grant & Sons Irish Brands Ltd –v- Lidl Stiftung & Co KG [2021] CSIH 38. William Grant felt that Lidl’s ‘Hampstead Gin’ too closely resembled their well know ‘Hendricks Gin’, as the Lidl version had a bottle shape, label shape, design and colour scheme similar to the William Grant original.
Reputational considerations will also come into play when considering IP issues, and this is even more the case in the modern, technologically advanced era we live in. In the William Grant case, as with many similar cases, concerns surrounding customer confusion are common, with there being a perceived risk that potential customers may buy Hampstead Gin, for example, when they were in fact meaning to buy Hendricks.
New brands trying to benefit from an established brand’s reputation is an issue as it can lead to brand dilution and detriment to that company. If the imitation is bad quality, this can in turn harm the original company’s reputation through association.
Of course, sometimes we see these disputes playing out on Twitter as well as in the courtroom. The latest example is the tweet from Home Bargains, which also references the great Colin vs Cuthbert Saga.
How can you protect it?
Whilst online disputes can be entertaining, there is the real potential for harm to a business and a brand when these copy-cat products appear. As such, it’s important to protect your company’s intellectual property assets.
Some types of intellectual property protection are granted automatically but if not, businesses will need to look at other options where there are considered to be risks or issues. When doing so, strategy is always important. Businesses might initially look to mark up their online or otherwise public content, by making clear that it is the property of the said business and that it is not intended for redistribution.
If this is is ignored, protection can in some cases be obtained by the issuing of a cease-and-desist letter at a pre-litigation stage. If that is not effective, common court remedies include seeking interim interdict, damages, an accounting of profits, or delivery or destruction of the infringing items. The Court of Session has designated IP judges and a specialised procedure under Chapter 55 of the Rules of the Court of Session, which aims to progress these types of disputes as swiftly and cost-effectively as possible. That being said, litigation is by nature usually expensive.
However, if litigation becomes necessary, choosing no win no fee claims company such as Alba Claims can help to keep your costs down.
If you need assistance in relation to enforcing your company’s IP rights, please get in touch.
