Once identified businesses should consider how to protect this IP including raising awareness amongst staff and where appropriate ensuring confidentiality. Consideration should be given to registration of the intellectual property (where appropriate) and being prepared to take enforcement action against infringers. Such enforcement action may include issuing proceedings against an alleged infringer in the courts of the relevant jurisdiction.
One issue every business should be aware of relates to ownership of IP and the distinction between employees and consultants. IP created by an employee in the course of his/her employment will generally be owned by the employer, unless there is an agreement to the contrary. However, IP created by a third party subcontractor or consultant will ordinarily be owned by that sub-contractor or consultant in the absence of any agreement otherwise. To avoid difficulties on this issue it is prudent to ensure that all relevant contracts specify who will have ownership of any IP created in the performance of the contract.
Effect of Brexit on Protection and Enforcement of IP
As noted above, uncertainty exists as to the protection and enforcement post-Brexit in the UK of EUTMs, SPCs, rights under the EU copyright directives and regulations, RCDs and UCDs.