News & Articles Hub
Gift & The Gab: Protecting Your Creativity
You have created something brilliant. How do you stop someone else copying it?
Creativity sits at the heart of the home, gift and lifestyle industry. New products, original artwork, distinctive packaging and memorable brands are what help businesses stand out.
Unfortunately, where there is a great idea, there is always the possibility that somebody else will take a little too much inspiration from it.
Following concerns raised by exhibitors around copied products at Autumn Fair, our latest Gift & The Gab session tackled a subject that feels particularly important for our industry: intellectual property.
We were joined by Philip Colbran, patent attorney, and Leah Calvert, trademark attorney at Barker Brettell, who helped cut through some of the legal jargon and explain what businesses can actually do to protect the things they create.
And perhaps the biggest message of the session was surprisingly simple: don't wait until something has been copied to start thinking about protecting it.
Think about intellectual property before you launch. The earlier you understand what can be protected, the more options you are likely to have if something goes wrong later.
IP starts much earlier than you might think
It is easy to think of intellectual property as something to worry about once a product becomes successful. The problem is that, by that point, some opportunities to protect it may already have been missed.
Different parts of your business may also need completely different types of protection.
A new technical or functional invention?
Patent protection may be relevant and may need to be considered before launch.
A distinctive product shape or appearance?
Registered design protection may be worth considering.
A business name, logo or product range?
Trademark searches and registration may help protect the brand.
Original artwork, photography or written content?
Copyright may arise automatically.
Speaking to an adviser early does not necessarily mean immediately spending money registering everything. It means understanding your options before you accidentally close some of them off.
IP protection isn't just for the big brands
One misconception tackled during the session was that intellectual property protection is only worthwhile if you are a huge company with an equally huge legal budget.
In reality, smaller businesses can be particularly vulnerable when copying happens. A large company may have the resources to absorb a problem. For an independent brand, one copied bestseller can have a much bigger impact.
Registered rights can also make challenging a copy much more straightforward. Instead of having to start by proving that the right exists, a registration certificate can provide much clearer evidence of ownership.
That can be particularly useful online
Many online marketplaces have processes for reporting potentially infringing products. Having registered rights can make it easier to demonstrate that you own the design or brand you are trying to protect.
Sometimes protection works before a dispute even begins. Displaying a registered design number or trademark can signal that you understand your rights and are prepared to protect them.
Found someone copying you? Don't react immediately
Discovering that somebody appears to have copied your product, artwork or branding is understandably frustrating. Your first instinct might be to message them, post about it publicly or demand that the product is removed.
The advice from the session was to resist that temptation until you understand your position.
1. Gather evidence.
2. Take screenshots and photographs and save copies of listings.
3. Check what registered rights you already have.
4. Get specialist advice before contacting the suspected infringer.
An IP specialist can look at registered designs, trademarks, copyright and any unregistered rights that may apply before advising on the most appropriate response.
And that doesn't necessarily mean court
Warning letters, negotiation, marketplace takedowns, product withdrawals and settlements can all resolve IP disputes without litigation. Court action is generally the last resort, not the starting point.
What actually protects a product or piece of artwork?
Registered designs
For businesses in the home and gift sector, registered designs can be particularly useful because they protect the appearance of a product and can provide a much clearer basis for enforcement.
The UK and EU provide some flexibility through grace periods following disclosure, but the general message was still to consider registration sooner rather than later.
Unregistered design rights
Some design protection can arise automatically, but relying on unregistered rights can make enforcement more complicated because you may need to prove ownership, originality and that copying actually took place.
Copyright
Copyright is slightly different because qualifying creative works can receive protection automatically without registration.
One useful distinction from the session was between a subject and somebody's creative depiction of that subject. A historical object, for example, may itself be free to use, while somebody's photograph or artistic interpretation of it may still be protected.
Good record keeping could be more important than you realise
A recurring theme throughout the conversation was evidence. If you ever need to prove that something belongs to you, being able to show how and when it was created can make a significant difference.
Who created the work, when it was created, contracts and commission agreements, whether the creator was an employee or external contractor, when the product was first shown or launched and who had access to it beforehand.
Ownership also needs to be clearly addressed when work is commissioned. Paying someone to create something does not mean businesses should simply assume every relevant intellectual property right has automatically transferred.
Get it in writing. A clear contract now can save a much more difficult conversation later.
No, changing five things doesn't make it legal
One of the most useful myths tackled during the session was the idea that changing five features of somebody else's product means you have automatically avoided infringement.
Several small changes do not automatically make a copied design safe. Depending on the rights involved, what matters can include the overall impression created by the competing product.
The discussion also touched on lookalike products and packaging, including the well-publicised Marks & Spencer v Aldi light-up gin bottle case.
It was a useful reminder that registering the visual elements that make a product distinctive can have real value when a competitor produces something that feels a little too familiar.
Check the name before you fall in love with it
You have found the perfect name. The logo is finished. Packaging has been designed. The website is ready to go.
Then you discover somebody else already owns a conflicting trademark.
Leah's advice was to carry out trademark clearance searches before making a significant investment in a new name or identity.
That means checking before committing to packaging, websites, marketing materials, product ranges and large quantities of branded stock.
Trademark rights are territorial. A UK trademark does not automatically protect your brand in Europe, the US or elsewhere, so international protection should be considered alongside your actual plans for growth.
Questions every creative business should be asking
You don't need to become an IP expert. Start by understanding where the value sits in your own business.
7 key takeaways
Protect the value you've worked so hard to create
Intellectual property can sound intimidating, particularly for smaller creative businesses. But protecting yourself doesn't have to begin with lawyers, disputes and courtrooms.
It starts much earlier: knowing what you've created, keeping good records, understanding which rights might apply and thinking about protection before a problem lands on your doorstep.
For an industry built on ideas, design and creativity, those things aren't just nice to have. They are valuable business assets.
A huge thank you to Philip Colbran and Leah Calvert from Barker Brettell for sharing their expertise, and to the HGA members who brought their own questions and experiences to the conversation.
Keep an eye on upcoming Gift & The Gab sessions for more opportunities to ask questions, share experiences and learn from experts and fellow members.
|
i
|
A final word: This article is intended for general information and reflects points discussed during the session. It does not constitute legal advice. Businesses should seek professional advice from a qualified intellectual property specialist about their individual circumstances. |