It is undoubted that the recent "lockdown" measures that have been implemented by the UK government have placed significant financial pressures on businesses across all sectors. Despite such and in order to adapt during challenging and everchanging market conditions, over recent months, we have seen an increased number of small start-ups selling goods and services, most of which is taking place via online ecommerce platforms. In the early stages of setting up their business, entrepreneurs are extremely busy and customer satisfaction would generally be the primary consideration. However, this initial start-up period is a crucial time for ensuring that intellectual property rights owned by third parties aren't being infringed by the new business. Furthermore, if the business offers a unique product and/or service, this would also be the time to ensure that the intellectual property rights in that product and/or service are adequately protected. If such matters aren't dealt with early on, a business could face legal action which could have a devastating impact on its future.
What Intellectual Property considerations should a start-up have?
Trade marksUnregistered trade marks can be identified by including the ™ symbol next to the trade mark. Whilst this in itself does not provide any proprietary rights over the mark in question, in some instances it is possible for the owner of the unregistered trade mark to bring a passing off claim if it can be proven that competitors are taking unfair advantage of the goodwill and reputation built up in the goods or services provided under that unregistered trade mark. Further information regarding passing off claims can be found here. Passing off claims are notoriously difficult to establish and costly for both parties. Therefore, a new start-up ought to always consider whether it is possible to protect their unique trading/brand names and logos via registration as a trade mark. Trade marks in the UK are governed by the Trade Marks Act 1994 (the "1994 Act"), and having in place a registered trade marks affords the owner an exclusive right to use that trade mark for the goods and services that it covers. This exclusive right may be infringed if a third party offers similar or identical goods/services under a similar or identical trade mark, with the 1994 Act setting out the remedies that will be available to the innocent party (including damages, an account for profits and also injunctive relief). Once registered trade mark status is obtained, the ® symbol can be used in order to indicate ownership and prevent any misuse. When launching a new business, product or service, two questions must first be asked:
- Will the new business, product or service infringe any unregistered or registered trade mark?
- If not, is it possible to obtain protection for the new business, product or service under the 1994 Act?