Eat, drink and protect your brand

So, the ultimate foodie event is now upon us. A perfect excuse to overindulge in eating and drinking our favourite local foods and tipples. And boy do we have some great produce down here in the South West.

But how well do these business score when it comes to understanding and protecting their intellectual property ("IP") rights? I'm talking here about issues like: do they register their brands as trade marks, so as to be able to stop others from using the same or a similar trade mark?

Do they seek patent protection, or enter into confidentiality agreements, in order to prevent competitors from copying their innovative manufacturing processes? What procedures do they have in place to stop ex-employees running off with commercially sensitive business information and setting up competing businesses?

Over the past decade successive Governments have spent significant sums trying to raise awareness amongst the business community, and especially amongst SMEs, about IP rights, their importance and why businesses need to invest in protecting and enforcing them.

The Ashfords IP Team wanted to know whether that money had been well spent. So, we carried out an IP awareness survey amongst businesses located in the South West that specialise in the food and drink sector. We contacted over 180 businesses and the results were telling.

First, the number of responses we received was small, even after contacting businesses a second (and in some cases a third) time and even after offering them free cinema vouchers and donations to charity if they replied to the survey questions. Many of the businesses just didn't seem that interested in IP issues.

Second, of those who did respond the answers demonstrated that there is still a lack of awareness and understanding and a need for further education on the subject of IP. By way of illustration:

· The majority had not registered their products' brand names as registered trade marks - thus making it difficult for them to prevent rival businesses from using the same or confusingly similar brand names.

· The majority did not carry out any pre-use checks (such as conducting a registered trade mark clearance search) to make sure that no-one else could prevent them adopting and using a new brand name they wanted to use for one of their products.

· The majority thought that the sign "TM" meant that a mark is a registered trade mark (when, in fact, that is not the case)

· A sizeable number of respondents thought that if you register your name at Companies House then no-one else can stop you using your name in trade - this is not true, as the owner of an earlier registered (or unregistered) trade mark may be able to do so.

· Some respondents thought that a recipe for a product can be protected by copyright or trade mark registration - it can't.

· Only 1 respondent said that they included post employment restrictive covenants on their employees to prevent them setting up in competition after they left the business.

· Most respondents said they do not include clauses in their contracts of employment with their employees that require them to keep certain important information confidential and only half used NDAs when entering into discussions with third parties in circumstances where sensitive business information would be disclosed.

· None had heard of the new IP Enterprise Court, which is a speedy, cost effective forum via which IP rights owners can enforce their IP rights against infringers.

· None of the persons responding had attended an official UK IP Office event, at which attendees receive information and guidance about IP rights, their importance and how to protect and enforce them.

Were we surprised by the responses? If I am honest, no, not really. It is often the case that businesses only approach us passively, seeking IP advice once something has already gone wrong (and often it is then too late for us to be able to help them). For example, they discover that another business is using a similar trade mark, but the client has not in the past registered its mark as a trade mark and, thus, has to try and bring a successful passing off case against them (often a difficult, uncertain and expensive course of action), rather than being able to bring (usually much cheaper and easier) registered trade mark infringement proceedings. Often many of them could have saved themselves a lot of heartache and (more importantly) money had they spoken to us at the outset, when they were first considering their new product launch, about how best they could protect their IP rights.

So, where do we go from here? Well, I guess it is down to advisers like me and the rest of the IP team at Ashfords to continue with our ongoing efforts to try to raise and increase awareness and understanding of IP rights generally amongst the local business community and especially amongst SMEs.

Businesses also need to play their part. Why not specifically assign responsibility for understanding and managing IP rights issues in your business to a particular director or employee? That person should be proactive, looking to educate themselves and to train the rest of the staff about IP rights and how best to obtain, protect and enforce them. Businesses should consider adopting internal IP Policies and Procedures, to make sure that IP protection and compliance is at the forefront of the business and that IP is captured and protected at the point of creation, rather than being an afterthought.

So, when you tuck into that lovely local pie, or down that wonderful glass of local ale during the festival, ask yourself this: do you know what IP rights exist in respect of those goods? More importantly, does the manufacturer and what, if anything, have they done to secure them? Creating tasty and satisfying local produce and selling it under a fresh and catchy brand is all very well and good, but if you don't look to secure your IP rights then you won't be able to stop others taking unfair advantage of your hard work, investment and innovation.

Carl Steele is a partner in the Information Technology and Intellectual Property Team at Ashfords LLP.