Thu 13 Apr 2023

Protect your intellectual property - an investment and not a cost

With businesses across the country feeling the squeeze and needing to think more carefully than ever about costs, it's understandable that some may see the protection of intellectual property rights as a costly luxury. In this article Ciaran Harkness, a solicitor in our Corporate team, explains why protecting your intellectual property can be treated as an investment - and not a cost.

What do Winnie the Pooh, Tinker Bell and a Deep Fried Mars Bar have in common? The answer might be more intellectual than you think.

Earlier this year, the rarely-seen (though not mutually exclusive) combination of B-movie horror buffs and intellectual property lawyers were united in watching intently as "Winnie the Pooh: Blood and Honey" burst onto the silver screen. Although reviews don’t paint the film as a stellar viewing experience, it is nonetheless notable as a high-profile example of the bizarre things that can happen when an iconic character starts to enter the public domain. 

The (now only mostly) willy-nilly silly old bear was introduced to the world by A.A. Milne in 1926, and entered into the public domain in the United States at the start of 2022 due to the expiry of American copyright protection. While this allowed for the film to hit the US market, the team behind Blood and Honey had to tread extremely carefully when depicting the character - making him virtually unrecognisable to modern audiences as well as avoiding depicting almost all his neighbours in the Hundred Acre Wood. This is because the rights to the universally-recognised animated cartoon versions of the characters are still owned by Disney.  

Disney are famous for many things, and protecting their intellectual property fiercely is one of them - so much so that the most recent major legislation to extend the term of copyright in the US is often nicknamed the "Mickey Mouse Protection Act". Their focus extends far beyond America, though. There are various stories (some of them doubtlessly apocryphal) about small businesses across the globe receiving ominous letters from Disney's lawyers accusing them of infringing the entertainment giant's IP and threatening all kinds of dreadful legal consequences if the infringement continues. There appears to be no world too small to escape Disney's attention - one such story involved a small boutique selling baby clothes in the Highlands receiving such a letter. The problem was that their boutique was called "Tinker Bell" - and they were therefore infringing one of Disney's trademarks.

Disney are not the only ones to guard their intellectual property vigorously. In 2012, Mars Inc. wrote to the owners of a chippy in Stonehaven warning them not to apply for "Protected Geographical Indication" (PGI) status for the deep fried Mars Bar. (PGI status protects things products with a specific geographical location, such as Arbroath Smokies and Stornoway Black Pudding). The chippy owners were more than a bit surprised to receive such a letter and questioned why a big US corporation was monitoring small-scale use of its IP and guarding it so jealously.

The answer is that IP assets can be incredibly valuable to companies. In the case of Disney and Mars they of course own tangible assets too, but without their IP, they would both lose a substantial amount of the value of their entire business. These companies also understand that there can be consequences to letting any infringements slide. If they don't take protective action against everyone - big or small - they risk losing the right to enforce their IP rights in the future. For them, there can be no cost too great in comparison to the real price of losing the value of their IP assets.

Not every company is a Disney or a Mars, of course. We clearly don't all have their resources to keep tabs on independent boutiques or fast food shops across multiple continents. Nonetheless, we can learn an important lesson from them - not investing in your IP protection in the first place, or failing to defend it when it's attacked, can be a very expensive false economy.  

If you'd like to speak with us about protecting your IP, please get in touch with our corporate team.

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