In an increasingly knowledge-driven business environment, intellectual property (IP) is a key consideration in day-to-day business decisions. In particular, IP affects all IT-enabled companies and knowledge-based industries. Issues related to the protection, enforcement and exploitation of IP rights can have a significant impact on a company’s prospects for economic success or failure.

Despite the critical importance of IP issues, few general solicitors develop a revenue generating IP practice, preferring to leave the area to specialists. However as IP issues become increasingly incorporated into daily business life, it is an area to which general practitioners should give closer consideration.

There are a number of areas in which a lawyer can provide IP advice. For example, work in relation to commercialising intellectual property rights can include matters such as copyright, trademarks, patents, digital rights management, anti-counterfeiting, piracy, confidential information and trade secrets.

Solicitors can also assist their client in securing IP rights, for example, by buying and selling intellectual property rights, negotiating and drafting contracts, auditing IP assets, structuring licensing strategies, advising on joint ventures, advising on competition law, framework distribution and agency agreements.

Where clients may have an international aspect to their business, issues associated with brand protection are very important. For instance, it may be necessary to pursue trademark or design registrations in North America, Europe and the UK, or implement anti-piracy measures.

Lawyers can also have a role in assisting their clients enforce existing intellectual property rights. This may initially involve detection and prevention of infringements of rights. Implementation of anti-counterfeiting programmes may also mitigate against the effect of counterfeiting. Subsequently, alternate dispute resolution or commercial litigation may be appropriate.

Lawyers can proactively assist clients in protecting intellectual property within the business, and aim for legal certainty and the enforcement of rights. It is important for lawyers to recognise that the intellectual property vesting in creative work may have different ends to different businesses. For example, it may mean a superior way of doing business, increased productivity or competitive edge, increased business agility, increased shareholder value, increased revenues, increased customer satisfaction and loyalty or reduced costs.

Many new products or services embody different types of IP. Forward-looking companies face the challenge of extracting the hidden or underdeveloped value of their intellectual property and using it effectively in their business strategy. Companies that dedicate time and resources to protecting their intellectual property may increase their competitiveness in a variety of ways. Intellectual property protection may help in:

• preventing competitors from copying or closely imitating a company’s products or services;
• creating a corporate identity through a trademark and branding strategy;
• avoiding unproductive investment in research, development and marketing;
• negotiating licensing, franchising or other IP-based contractual agreements;
• increasing the market value of the company;
• improving access to financing; and
• obtaining access to new markets.

Lawyers should also consider whether intellectual property audits may be appropriate for their clients. IP audits analyse the ownership of intellectual property assets within a company and earmark those assets for future use. Identifying IP assets allows a company to safeguard the value of assets that make up the true value of the business. Those assets may then be accounted for on balance sheets. This may help focus attention on assets that are available for raising financing, licensing or sale. If inventions, new technology, software and product designs are key to a company, protecting intellectual property is central to value creation.

Lawyers should emphasise to clients that the intellectual property aspects of a business are often tied to other commercial issues. A law firm can provide a full range of legal services to businesses with intellectual property assets such as advice on taxation, employment, immigration, competition, corporate structuring, leasing and other general commercial matters.