Intellectual property (“IP”) can be a double-edged sword. Ignore it, and it may represent a risk. Manage it, and it may become a valuable opportunity.
Whilst many allocate most value to tangible assets, such as real estate, recent data paints a very different picture. According to a number of industry reports, intangible property accounts for more than 80% of the S&P 500 overall value – and most of this value is protected by way of IP rights.
Copyright, registered trademarks, passing off, patents, registered/unregistered designs all represent viable protections for the right asset. Even ‘know-how’ and confidential information count as options for the protection of intangible assets (although technically these are forms of control that a party secures contractually rather than through IP rights).
While it is paramount to learn how to identify and protect your intangible assets through IP rights, understanding how to best use your IP rights is equally as important. IP rights are negative rights, meaning that securing protection does not entitle you to an income. Instead, it simply allows you to stop others from using and/or benefitting from your intangible asset for which IP protection was secured.
In order to generate value out of your IP rights, you need to put them to use.
Once you have secured protection for your intangible assets, it is therefore essential to create a strategy to market and commercialise them. For example, you could sell your IP right, or give others permission to use your intangible asset in exchange for money or money’s worth. What is important is that you use your right and don’t sit on it.
Whether you’re unsure if you are, or should be dealing with IP, confused which IP asset is relevant to you, unsure who owns the IP, or wish to understand how to commercialise your IP, our team at Hassans can help you identify risks and opportunities and, where applicable, develop a strategy for maximising your IP assets. Check out our FAQS and/or contact us today to arrange a no obligation consultation with one of our experts.
Gibraltar Intellectual Property FAQs
- What is Intellectual Property?
In a nutshell, intellectual property refers to a bundle of separate rights (“IPRs”) that are available for the protection of intangible assets.
Copyright, registered trade marks, passing off, patents, registered/unregistered designs all represent viable protections for the right asset. ‘Know-how’, confidential information and passing off are also options available for the protection of intangible assets, although technically these are forms of control that a party secures contractually or protect through the courts rather than through IP rights.
- Can ideas be “patented” or protected by way of copyright?
The simple short answer to this complex question is no: IP does not protect ideas. You cannot prevent others from having the same idea or benefitting from it. However, what you can do is to turn your ideas into a something that can be protected through IP rights.
- What are the risks of not properly protecting and managing IP?
Imagine if you were to commission the development of a software for your specific business needs and if, without expecting or planning for it, one day an investor was to turn up and offer you a substantial amount of money to use or to buy your software. Now imagine if, in that scenario, you decided to sell that investor the software but later discovered that you in fact did not own the software but that instead the software belonged to the developers because you mismanaged the IPRs protecting the software. Wouldn’t you consider that a considerable problem?
This is only an example of the consequences of mismanaging and neglecting IPRs, which unfortunately we see happening more than we would like. As for any other area of life, prevention is better than the cure. Therefore, we highly recommend you always keep in mind the importance of managing your IPRs and act accordingly.
- Why is it important to properly manage IP?
First and foremost, proper management of IPRs is paramount to avoid incurring problems such as the one described in the answer above. In addition, whilst many allocate most value to tangible assets, such as real estate, recent data paints a very different picture. According to a number of industry reports, intangible property accounts for more than 80% of the overall value of the 500 largest companies in the United States – and most of this value is protected by way of IP rights.
However, IPRs are negative rights, meaning that securing protection does not entitle you to an income. Instead, it simply allows you to stop others from using and or benefitting from your intangible asset for which IP protection was secured. Therefore, protection only constitutes the first step in the property management of IPRs.
- Once I’ve secured my IP rights, how do I commercialise them?
Generally speaking, securing protection through IPRs does not entitle you to an income. Instead, it simply allows you to stop others from using and/or benefitting from your intangible asset for which IP protection was secured. Therefore, in order to generate value out of your IP rights, you need to put them to use.
For example, you could sell your IP right, or give others permission to use your intangible asset in exchange for money or money’s worth. What is important is that you use your right and don’t sit on it.
It is essential to create a strategy to market and commercialise them. It may also be useful to consider some of the case studies which can be accessed via https://www.wipo.int/ipadvantage/en/
- What’s the difference between registered and unregistered rights?
Knowing the difference between the two broader categories of rights will allow you to immediately identify whether the IP right that is relevant to you require specific steps (i.e. registered IP right) or whether instead the inherent nature of the subject matter already affords you IP protection (i.e. unregistered IP right).
- Does Gibraltar have intellectual property rights?
Gibraltar certainly has IPRs! Unfortunately, in our experience the secondary registration system for IPRs in Gibraltar creates some confusion and misconceptions. Therefore, we decided to help addressing these misconceptions by providing a brief explanation here.
Gibraltar sports a secondary registration system for registered IPRs. Registered rights require positive steps in order to be secured. An applicant would need to demonstrate that the subject matter which they want to register under their name meets the criteria for protection. The specific criteria and the process would vary in accordance with the specific form of registered IP right that is sought by the applicant.
IP types falling under this category include registered trade marks, patents, and registered designs.
The secondary registration system requires applicants to first secure protection in the UK for the registered IPRs, and then seek recognition of such IPRs in Gibraltar by registering it at the Gibraltar Companies House.
With that said, the above applies to IPRs at a national level. If, for example, an applicant was to apply for a European Trade Mark at the European Intellectual Property Office (“EUIPO”) they would not need to register that right in the UK and then Gibraltar as their right would already be enforceable across the European Union. Please note that this may change due to of Brexit and that, if that was the case, we will update this page to reflect such a change.
On the other hand, unregistered rights arise automatically, as soon as the subject matter is created – provided that such a subject matter fulfils the specific criteria for protection. As for registered rights, criteria for protection vary in accordance with the specific type of unregistered IP right that is relevant to that subject matter.
IP types falling under this category include copyright, unregistered designs, and passing off (or goodwill).
This is particularly interesting as if unregistered IPRs do not fall within the secondary registration system, it could be argued that most intangible assets in Gibraltar fall under this category given the prominence of the gambling and fintech industries and given that both industries rely on software and, therefore, on copyright protection.
Therefore, as this answer tries to illustrate, Gibraltar has IPRs and the secondary registration system should not deter you from seeking protection and from commercialising your IPRs especially given that it may not even apply to you.
- How can I learn more about how to protect my intangible assets, and how to commercialise my intellectual property rights?
Contact our team for an initial consultation.
For more information, please contact one of the Corporate & Commercial team.
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