In recent months, a number of intellectual property infringement cases have hit the headlines, some closer to home than others! From spicy chicken to sweet marshmallows, there seems to be a new case of Intellectual Property infringement every fortnite, that could have been avoided with intellectual property insurance.
And no, that’s not a typo! If you have kids (or perhaps not!), you’ll no doubt be aware of the online apocalyptic video game Fortnite Battle Royale, published by EPIC Games. It turns out Fortnite is ‘allegedly’ quite similar to another game; PUBG. PUBG Corp is taking Epic Games to court in South Korea over accusations that Epic Games copied intellectual property to create Fortnite. With the global video game market worth over $100 billion, and growing (particularly in the mobile space), it’s no wonder publishers will fight hard to protect their intellectual property, and no wonder still that other’s will try to copy! Both parties will potentially have invested heavily in their platform, product and experience, and both will have substantial costs to meet in their own battle royale.
Protect What Makes You You
Being unique is often key to a business’s ability to demonstrate value. Therefore protecting what it is that makes your business unique is crucially important. Intellectual Property is a creation of the mind and can include copyrights, patents, trademarks, industrial design, artistic works, words, phrases and symbols; amongst other creations.
A Professional Indemnity policy will likely include basic levels of cover for your infringement of someone else’s Intellectual Property. However, if your business is heavily reliant on your ideas and your potential exposure is large, a dedicated Intellectual Property insurance policy would be recommended.
A good Intellectual Property insurance policy will cover the defence and pursuit of intellectual property infringement claims. It will also repay the investment made to create the Intellectual Property should a right be invalidated as a consequence of infringement, allowing your business to move on to the next idea. Upfront investment can be costly! Loss of profit would also be covered in the event that you lose an intellectual property infringement case and are served an injunction preventing you from trading certain product lines. Intellectual Property cover will provide for:
- Costs for the pursuit of those who infringe your intellectual property
- Loss of profits
- Repayment of investments made in intellectual property
- Legal costs, damages, counterclaims and settlements
- Contractual Indemnity Cover – allowing smaller businesses to do business with larger clients
So what of spicy chicken and sweet marshmallows?
Earlier this year, Nando’s, famed for being #cheeky, got it’s beak in a twist when a Reading based independent food store used the name ‘Fernando’s’. Nando’s were accused of being threatening. Fernando’s got national press coverage. Possibly a cynically genius marketing move or a genuine case of mistaken identity?! You decide. As for any costs incurred and the requirement to make a claim, we don’t know how this one ended, or even if it has ended. Had Fernando’s been a bigger chain, they may have fought Nando’s, in which case costs would have been incurred, potentially to the point it would be worth making a claim on an intellectual property policy.
In a case closer to our hearts, Marshmallow, an insurance provider for drivers who were born overseas, recently had a sticky situation with Marsh, a 113 year old global insurance giant. Marsh took umbrage with Marshmallow’s trademark registration on the basis that the two names could be easily confused. The government’s intellectual property office found in Marshmallow’s favour. What they were awarded did not cover their costs however. The numbers involved were not massive and the new business was able to battle through, but had the case been more substantial and complex, costs could quite easily have risen to a point where some good Intellectual Property insurance would have been a wise move.
At the time of writing, the French cosmetics giant L’Oreal appear to be in trouble for patent infringement. US based start up Olaplex have won their case and an additional hearing will determine whether or not to grant an injunction against the sale of L’Oreal’s Smartbond hair protection product.
Drawn out legal proceedings are not the only avenue to take of course, but if the infringed party digs their heels in, you can expect costs to escalate. You’d imagine a global insurance giant to have things covered, but at the smaller end of the market, Intellectual Property insurance cover will help with the costs of protecting your intellectual property. Such costs may include the cost of enforcement, pursuing or defending claims for intellectual property infringement, validity or ownership, loss of protection or finding of infringement, or fighting contractual claims with third parties affected by such events.
Taking legal advice is probably always advisable where you think there has been an intellectual property infringement. Our friends at Field Seymour Parkes offer their comment and advise on the subject:
Intellectual Property rights are a valuable, important and integral part of many businesses. The case of PUBG Corp and Epic Games highlights how companies using similar foundations, in this case the Unreal Gaming Engine, can still encounter conflicts in regard to Intellectual Property infringements. The injunction filed by PUBG Corp against Epic Games for copying their in game interface and items has parallels with UK Copyright Legislation about when an intellectual property infringement has occurred. Discerning whether or not Epic Games has copied both a substantial and important part of PUBG Corp’s game will be a key part of this case and is an important assessment that applies to almost every case concerning Intellectual Property infringement.
Seeking professional legal advice during every stage of establishing a trademark will help you feel more secure with the knowledge that your intellectual property is protected. If, however, an intellectual property infringement leads to court injunctions and civil proceedings, a diligent and hardworking legal team coupled with an Intellectual Property insurance policy is a must. On top of this, if another party is infringing upon your Intellectual Property then again strong legal guidance and an insurance policy are important. Field Seymour Parkes has been entrusted with advising and representing businesses in this area for years and our specialist lawyers can help a business both protect itself from Intellectual Property infringement claims and pursue infringements by other parties on our client’s behalf.
– Soraya Salhi, Commercial and Tech. Field Seymour Parkes.
About Field Seymour Parkes
With an enduring commitment to serving both business and personal legal needs Field Seymour Parkes provides sound, no-nonsense advice and value for money. They employ solicitors experienced in delivering a wide range of legal services from wills and conveyancing to advising on multi-million pound company sales. Their core values encompass hard work, technical expertise and a down-to-earth approach. Clients stay with Field Seymour Parkes for the journey which is why they will always go the extra mile for them.
About Macbeth Insurance Brokers
Macbeth is a leading independent chartered insurance broker and financial adviser working with businesses and private clients across the country. Today, Macbeth is one of the fastest growing insurance and financial services businesses in Reading and the wider Thames Valley, providing independent insurance and financial advice backed by truly outstanding client-focused service.