Trademarks, patents, trade secrets, and registered designs: All of these things make up your company’s intellectual property (IP), and give you the edge you need to stay ahead of the competition. But how do IP laws work when you’re opening a branch in another country, like the United Kingdom?
While IP laws are complex on their own, the UK’s exit from the European Union has left many business owners uncertain about whose regulations to comply with, and if their intellectual property is protected at all post-Brexit.
In this guide, we’ll give an overview of some of the basics of protecting your company's IP rights and ownership (note: our guide is for informational purposes, and isn’t intended to provide legal advice).
1. NDAs are enforceable in the UK
Non-disclosure agreements—also called NDAs or confidentiality clauses—are one of the most common ways employers ensure current and former employees don’t reveal sensitive information to others. However, in recent years, the British government has begun keeping a close eye on NDAs to ensure they’re not being used to gag employees from reporting serious incidents, like harassment, to the proper authorities.
Here are a few quick tips on writing up a legally compliant NDA in the UK:
- Make sure the language used is specific and the scope is narrow. Rather than writing a broad-ranging document that attempts to take every possible instance of potential misuse of intellectual property into account, it’s best to be very specific. You can always broaden the scope later if you need to.
- Confidentiality clauses don’t last forever. In the UK, NDAs are only valid for three to five years. After that, you’ll either have to have the employee or business partner sign a new NDA or accept that your IP is now up for grabs.
- There are two types of NDAs in the UK. Mutual NDAs should be signed when both parties are sharing sensitive information; one-way NDAs are used when only one party is sharing confidential information.
2. You must specify which country your NDA covers
It’s a common (and very understandable) misconception: If you have a business in any of the four countries that make up the UK—England, Wales, Scotland, and Northern Ireland—one general “UK NDA” should be good for all of them, right?
The answer is no. Even though they’re all part of the UK, you’re actually dealing with three different court systems: One for England and Wales, one for Scotland, and one for Northern Ireland. If you wind up in court over an intellectual property issue and fail to specify which nation’s court system should enforce the terms of the NDA, your case might get thrown out just because the judge isn’t sure if, say, Scotland’s laws apply to the confidentiality clause or England’s.
3. There are four different types of IP protection in the UK
Whether you’re trying to protect your brand’s name and logo, a new medicine you invented, or a movie your company produced, you can choose from four different types of IP protection in the United Kingdom. Your choice depends on exactly what you want to protect:
- Trademarks. The Intellectual Property Office (IPO) is the arm of the British government that oversees intellectual property protection, allows you to register words, sounds, logos, jingles, or any combination of qualities that make up your product or company’s trademark. Once your trademark application is approved, your IP is safe for 10 years. After that, you’ll have to register your trademark again. Note that it can take around four months for the IPO to process your application, so you’ll need to factor that in when you’re setting up shop.
- Designs. You can register the appearance of your product in as little as three weeks to keep it safe from others who would profit off of it without your permission. The IPO includes shape, pattern, packaging, and similar qualities in its definition of “design.” Once your application is approved, your design will be registered to you for five years. You can renew your registration every five years up to a maximum of 25 years.
- Web copy, literary works, films, music, photography. The IPO has a broad definition of what can legally be copyrighted in the UK. Any original broadcasts, written works, television shows, music, movies, and other, similar artistic works receive automatic copyright protection. You don’t have to pay any fees or fill out any applications. You don’t even need to put a copyright symbol and your name on the work.
- Inventions. Getting a patent for something you invented—like a new product or piece of equipment—is a long, expensive, and arduous process. It can take up to five years to have a patent application approved by the patent office in the UK. The British government even recommends you hire a patent attorney to help you protect your legal rights over the work, which will add thousands of pounds to the final bill you’ll pay to receive the patent. Once you get your invention patented, the patent is valid for five years. You can renew your patent every five years for a maximum of 20 years.
4. You automatically receive some limited protection to your IP rights
If you’re expanding your operations to the UK and have yet to fill out an application to the Intellectual Property Office, it’s helpful to know that the British government grants limited, automatic protection to some types of intellectual property, such as the rights to unregistered designs, known as “design right.” Under its design right regulations, the IPO automatically protects the appearance of an item for the first three years after it’s been made public. It protects the shape and configuration of unregistered 3D designs for 15 years after the object’s creation and for 10 years after you make your first sale. However, there’s a caveat to the concept of unregistered design rights: If somebody asks to use your design and it’s during the final five years of protection, you have to give that person permission. In the UK, this concept is called “licence of right.”
5. Just because you’re protected in the European Union doesn’t mean you’re protected in the UK, and vice versa
When it was part of the EU, the United Kingdom enjoyed the benefits of EU cross-border copyright mechanisms. Now, under the Withdrawal Agreement, only database rights that existed prior to Brexit will receive cross-border protections (only while the terms of the initial protection contract are still valid). Otherwise, the UK is treated as a third-party nation by the EU. If your rights are exhausted–meaning you no longer have the power to prevent goods you put on the market from being moved anywhere in the European Economic Area (EEA) or the EU, they’ll remain exhausted.
If you’re uncertain about whether a product you registered in the EU prior to Brexit is still protected under UK law, you can contact your local IPO Information Centre.
Frequently asked questions about intellectual property rights in the UK
What happens if someone uses my intellectual property without my permission?
If someone steals your intellectual property—that is, they use it without either buying it from you or getting your permission—you can take them to court for IP infringement. Rest assured the UK government takes this crime quite seriously: The penalty for IP infringement is either unlimited fines, a jail sentence of up to 10 years, or a combination of the two.
Is an NDA I drew up for a company in England valid throughout the UK?
No. The United Kingdom is actually home to three separate court systems: One for England and Wales, one for Northern Ireland, and one for Scotland. It’s crucial to specify which legal system can enforce the terms of your NDA, especially if you and your employee(s) are based in different countries. Your lawyer can likely do this with a simple line, something like “this agreement shall be governed by the laws of Scotland.”
Can I get more than one type of protection?
Yes! The Intellectual Property Office understands and anticipates that business owners might need to protect different aspects of their work, such as the jingle used in an advertisement, the logo for that company, the colors of the logo, and the design of the products the company makes. To help you figure out if you need more than one type of IP protection (and, if so, which ones you need), the British government offers the following resources:
- Hire an intellectual property lawyer or patent attorney.
- Go to the British Library Business and IP Centre if you’re in London or an IP clinic if you’re located elsewhere.
- Use the IPO’s equip service, an online training tool for people looking to protect their intellectual property.
When should I have someone sign an NDA?
While the IPO provides some limited, automatic protection to business owners, they still caution companies to protect themselves by keeping critical information confidential, even if it falls under a category that’s automatically protected. If you have to share information with someone else, like a new business partner or employee, have them sign an NDA before you reveal any information just to be safe.
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Rippling and its affiliates do not provide tax, accounting or legal advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any related activities or transactions.