Just say one of your employees has created a food packaging which keeps salad fresh for longer and has a distinctive label and shape. How can you stop competitors developing copycat products?

The answer is to make the most of your intellectual property rights. If the packaging incorporates a genuinely innovative feature related to its function or construction, that part of it may qualify for patent protection.

Ownership of a patent will allow you to take legal action against anyone who makes use of your invention without your permission. However, patents are expensive to obtain, must be applied for at the UK Patent Office, and usually only protect very specific features of a product.

In most cases, the key aspect of the packaging that distinguishes it from the competition is not how it works but how it looks eg. the label and shape.

The label may benefit from copyright protection if it results from independent creative effort. Copyright protection lasts for the life of the designer plus a further 70 years. As copyright arises automatically, there is no need for registration, nor do you have to add the © mark followed by the year (it is helpful to do this because it shows you have identified that you are the copyright owner and when you created the work).

The label, trading name and logo may also be protected by a form of legal action known as “passing off”. For example, if your salad packaging has become well-known in the UK and you start to lose sales to another product which is being put on the supermarket shelves next to yours with a very similar label and packaging, you may well have a successful passing-off claim.

Neither copyright nor passing-off rights require any registration but this can make them more difficult to enforce than registered rights (see below) should you need to take court action. As a result, it may be worth registering certain aspects of the packaging as a trademark. Trademarks can be registered at the UK Trade Marks Registry (part of the Patent Office) to achieve protection in the UK or at the Community Trade Marks Registry (OHIM) in Spain to achieve protection in the 25 EU Member States. Protection lasts for as long as renewal fees are paid, if you make regular use of the registered mark in promotions.

Theoretically, shapes and colours can also be registered as trademarks but in practice this is difficult. The shape, configuration, pattern and ornamentation of the packaging is more likely to be protected by design right.

Unregistered design right arises automatically but a more robust form of protection can be achieved relatively quickly and cheaply by applying for registered design right at the UK Designs Registry (part of the Patent Office). Alternatively, protection EU-wide can be achieved by registering it at the Community Designs Registry (part of OHIM).

If someone copies the packaging without your permission, the first step should be a carefully-worded warning letter (preferably from a firm of lawyers to show you are taking the matter seriously) to the person or company copying your packaging. These letters must be carefully worded because it can be unlawful to make unjustified threats of IP infringement.

If the copying continues, you can sue the infringing company. If you are successful, the court may order the infringing company to stop copying your packaging (an injunction) and/or to pay damages to compensate you.

Richard Marke is a partner and Lucy Etherton an intellectual property lawyer at Travers Smith

Business digest

New law to prosecute negligent companies

New legislation to prosecute companies whose gross negligence leads to death has been published in the Corporate Manslaughter and Corporate Homicide Bill. The proposed new criminal offence enables the courts to consider the overall picture of how an organisation’s activities were managed by its senior managers, rather than focusing on the actions of one individual. An organisation will be guilty of the new offence if someone has been killed as a result of the gross failure of an organisation’s senior managers. It will also cover organisations providing goods and services to members of the public, the construction, use or maintenance of infrastructure or vehicles, or when operating commercially. If a company is found guilty of corporate manslaughter, the penalty will be an unlimited fine. The bill also gives the courts power to impose a remedial order, which can already be imposed for health and safety offences and requires the company to address the cause of the fatality. http://www.publications.parliament.uk/pa/pabills.htm

Low-paid workers to benefit from more annual leave

Plans to ensure that workers get to take paid leave for bank holidays in addition to the statutory four weeks annual leave, were set out in a government consultation document. The proposals mean that up to two million of the lowest paid stand to benefit from additional leave, with women, part-timers and those from ethnic minorities likely to gain the most. The government proposes to phase in the additional leave starting with an increase from 20 to 24 days (pro rata for part-time workers) from October 1, 2007. www.dti.gov.uk/employment/holidays/index.html

HSE revamps guidance to simplify risk assessments

The Health and Safety Executive has issued a revamped risk assessment guide featuring examples that spell out what is - and what is not - expected.

The guidance Five Steps to Risk Assessment, which was first published in 1993, has been revised and simplified to make it easier for normal business people, not just health and safety experts, to use. It also places greater emphasis on making sure that decisions are actually put into practice. The 11-page booklet provides advice and tips on five key elements to an effective risk assessment: identifying the hazards; deciding who might be harmed and how; evaluating the risks and deciding on precautions; recording findings and implementing them; and finally ensuring they are reviewed at regular intervals. The leaflet can be downloaded free: http://www.hse.gov.uk/risk

Access to public sector contracts

There are now more than 7,000 government contracts advertised on a new business portal which removes the barriers faced by many small businesses to access public sector contracts. The supply2.gov.uk portal allows UK public sector organisations to publicise their lower-value contracts free of charge. And, for the first time, businesses will be able to view such contracts in a single place, reducing the time taken to source opportunities. Contract information in a business’ chosen location will be available free of charge - a significant benefit, particularly for small firms. www.supply2.gov.uk