So you’ve spent months or years developing your product or business idea, you’ve launched it and you’re thinking about taking on your first few members of staff. What most small business owners don’t spend a lot of time thinking about is how to protect their confidential information and intellectual property – yet these things might be your business’ most important assets.
Confidential information could be technical (for example a secret recipe) or commercial (a list of clients or pricing structure).
Intellectual property (IP) is something unique that you physically create. It’s an umbrella term that describes a range of legal rights that attach to certain types of information and ideas. Making sure you protect your IP will help you to maximise your competitive position by stopping people stealing or copying things like the name of your products or brand, your inventions, the design or look of your product, or the things you write, make or produce. It will also stop you from infringing the IP rights of other businesses.
Here are the top 5 ways to protect these crucially important assets:
1. Confidentiality and IP clauses
Make sure you have robust confidentiality and IP clauses in your contract with anyone you take on, whether as an employee or as a consultant. The employment contract or consultancy agreement should make clear what information is confidential and that the person cannot use or disclose it before or after they leave the business. The IP clause should make clear that any IP rights that the person creates while working for you remain yours even after they leave.
2. Confidentiality agreements
If the information you want to protect (whether technical or commercial) is highly confidential, you should consider having a separate confidentiality agreement (sometimes called a “non-disclosure agreement”) with each person who has access to the information. These agreements are also important if you are discussing your IP with certain people before it has been registered and therefore protected.
3. Post-termination restrictive covenants
You should also think about including in your employment contracts restrictions on where your employees can work and what they can do once they have left the business. These include non-competition, non-solicitation, and non-poaching obligations. Make sure you take legal advice, otherwise the restrictions might not be enforceable.
4. Garden leave
If and when someone does leave the business, you might want to put them on “garden leave” during their notice period, which means that they are still employed but stay at home, and so cannot access the company’s information, contact clients, or work for anyone else. To make sure you can legally do this, include a right to put them on garden leave in their employment contract.
5. IP protection
Patents: Patents provide inventors with a legally protectable monopoly over their inventions and protect new and inventive technical features of products and processes. For example, you might want to obtain a patent over your product name or logo. To obtain a patent, you usually have to file an application with the UK Intellectual Property Office.
Trade marks: A trade mark is a sign or symbol used by a trader to distinguish its products or services from those of other traders. For example you might want to obtain a trade mark over your brand name or packaging. Trade mark owners can apply for a UK or a Community trade mark (CTM). A UK-registered trade mark is only enforceable in the UK, while a CTM is enforceable throughout the EU.
Design marks protect the appearance of the whole or part of a product. They can be registered or unregistered. As with trade marks, design owners can apply for a UK registered design or a Community Registered Design. An unregistered design gives a right against copying.
Copyright protects original artistic, musical, dramatic and literary works. Copyright arises automatically on the creation of the work and usually lasts for 70 years after the death of the author.
Whatever the size and nature of your business, it is important for you to give thought to these issues and to take steps to give yourself the best protection possible.
Have you got your business covered? Ask me any questions you may have in the comments below!
photo credit: deathtothestockphoto