Enforcement Is Key To Maintaining The Value Of Intellectual Property!

A business’ intellectual property (IP) is often undervalued and can certainly give you the competitive edge to stand out in competitive trading conditions. This is particularly relevant to the food and drink industry. By way of example, Yeo Valley Organic and Rodda’s are some of the West Country’s most valuable brands.

South West businesses in the food and drink industry rely heavily on IP rights to protect their products and allow commercial exploitation of their endeavours. They appreciate the importance of IP rights and their protection in a global market.

The UK Intellectual Property Office which oversees the registration of IP rights in the UK sums up IP elegantly as the “ingredient that turns knowledge into assets”, adding that IP assets “can account for as much as 80 per cent of the value” of a business.

IP rights are national in scope and range from trade marks and patents to know-how and design rights. Accordingly, it is critical for any business to identify their main commercial markets, and if practicable, apply for protection in these areas. A South West food and drink business may have a brand which originate from the region but is sold all over the world. Therefore, it is important for the IP rights to be protected in all jurisdictions in which the product is sold in order to adequately protect it in those markets.

However, the value of any IP is not only determined by its market presence but also by who owns it and the ability to enforce the rights. An example of a dispute over IP is the Newcott Chef (a roadside restaurant located on the A30 in Devon) which used red-and-white branding allegedly similar to the Little Chef restaurant chain.

Last year it was reported that Newcott Chef had been threatened with legal action by Little Chef and asked to re-brand. Little Chef later clarified there had been a misunderstanding and it had no plans to take any formal action. The Newcott Chef’s owner described it as a "fuss about nothing" and said there had been no contact with Little Chef since he went to court in 1993 when the company tried and failed to make him change his logo.

But disputes like this show the value of professional advice from a specialist before you design any signs, brochures or ’get up’ for a new business.

There are various types of legal ownership, with many grey areas particularly in the area of licensed trade marks. If you do not own, or have not been formerly granted the relevant IP rights you may not be able to enforce them.

Pro-active enforcement of IP rights is critical. Competitors watch these things closely and will move closer and closer to strong brands if they are not warned off. A failure to enforce will also undermine the value of the right itself and can make future enforcement more difficult.

Conversely, if you find yourself accused of IP infringement there are a number of defences to such claims. The strongest is applying for revocation of the registered trade marks for non use. Such tactics (and non-use can be very technical) should be considered in detail before conceding your position.

Like any kind of litigation enforcement of IP rights or defending an IP infringement claim can be expensive so it is important to assess your position at the earliest possible stage. Similarly, early action is critical if an injunction is required to prevent further damage since this is entirely in the court’s discretion – and any delay could be fatal.

Published 01/09/2009. The author of this article is Marlene Howels